Today’s question comes from a volunteer firefighter who often speaks:
… to salaried staff on the phone on all manner of issues.
On the conclusion of the phone call I will then send an email to the staff member in point form confirming the substance of the conversation.
Is there a legal requirement for the staff member to reply to the email, regarding the conversation, or can it be ignored?
One would think the answer would be ‘there is no legal requirement to reply; the email can be ignored’ but it’s actually not that straightforward.
First I’ll make an assumption that we’re talking about a contentious issue, that is the phone call is not merely a social call. Second, I’ll also assume that the result of the conversation is that someone agrees to do, or not do, something or there is some other form of anticipated follow-up action promised or expected as a result of the call.
It is always wise to make contemporaneous notes of conversations over contentious issues. Legal Practice 101 tells all new lawyers always write a file note. A contemporaneous record can be used later when someone asks: ‘and how is it that you can recall the details of a conversation you had 10 months ago?’. The answer is ‘I’ve looked at the notes I made at the time and that allows me to recall the conversation’ (see The value of file notes (June 10, 2016) and Record keeping and report writing (February 14, 2019)). Having written a file note you need to keep it somewhere. Attaching it to, or putting it in, an email is not a bad storage system.
The email gets sent (and another assumption – I assume it is sent to the correct email address and is actually received) then what? The recipient has three options; they can:
- Respond positively – “yes I agree that your notes accurately reflect our conversation and what each of us promised to do”;
- Respond negatively – “no I do not agree that your notes accurately reflect our conversation, I did not promise to do X or not do Y, I still expect you to do A and not B”; or
- They can choose to not respond at all.
I’ll now invent a scenario. Suppose a member speaks to a senior salaried officer because there is a shortfall of money in a brigade account for which the member is responsible. During the conversation the member denies any wrongdoing but admits there is a shortfall. The member agrees to make up the shortfall (let’s say $100) but says ‘but I don’t admit I did anything wrong and I understand you are going to do a further investigation and if you are satisfied that I did nothing wrong you’ll give me my $100 back’. The salaried officer says ‘yes that’s right, I’ll look into it and if it is as you say it is, we will give you that money back. I’ll get back to you within a month’. The member makes notes of that conversation, sends them to the salaried officer and also deposits the $100. Then suppose, a month later, the member receives notice, from that same salaried officer, that he is satisfied that the shortfall was not due to any misbehaviour by the member and the circumstances that caused it to arise were as the member said it was in that phone call and recorded in the notes, but the salaried officer says ‘but the account was your responsibility and even though you did nothing wrong, we’re not going to refund the money’.
Let us return to the email notes.
(1) If the salaried officer had replied saying ‘yes I agree with your conversation’ that would be strong basis to demand the refund of the money. There was an express agreement that the money would be refunded “if it is as you say it is.”
(2) If the original salaried officer had replied saying ‘no that is not what we agreed to’ then the member would know that there was a different understanding and would know to act accordingly. Presumably in that case he or she would not deposit the $100 but would wait to see if the service could establish that he or she owed a debt.
(3) What happens if the salaried officer does not reply to the email? Silence is not acceptance (Felthouse v Bindley  EWHC CP J35) so the absence of a reply does not mean that the salaried officer is deemed to have accepted the contents of the note are true and accurate or that their silence creates a binding agreement. But the absence of reply could give rise to the doctrine of equitable or promissory estoppel (fancy language to say the salaried officer cannot now deny the contents of the email (ie they are ‘stopped’) because it would be unfair (inequitable) to do so.
In Waltons Stores (Interstate) Ltd v Maher  HCA 7 the parties were in negotiations for lease. Whilst the terms of the lease were agreed upon there was no formal exchange. The conduct of proposed tenant led the owner to believe that exchange would occur and the owner changed its position, to its legal detriment, based on that belief. Brennan J said (at  of his judgment):
A party who induces another to make an assumption that a state of affairs exists, knowing or intending the other to act on that assumption, is estopped from asserting the existence of a different state of affairs as the foundation of their respective rights and liabilities if the other has acted in reliance on the assumption and would suffer detriment if the assumption were not adhered to
(For latest case on estoppel see Crown Melbourne Limited v Cosmopolitan Hotel (Vic) Pty Ltd  HCA 26 ).
How does that apply here? The agreement to repay the money ‘induces’ the belief in the member that a state of affairs exists – if the investigation confirms that it was not the member’s fault, they will refund the that the $100. Depositing $100 is acting to the member’s detriment; not only do they lose the $100 they also lose the position of being able to deny that they owe a debt. If they did not pay the money and their fire service claimed there was a debt due they would have to sue for that money. By depositing the money, if the member wants it back, he or she would have to sue. A clear legal detriment.
The member has acted on ‘an assumption that a state of affairs exists’ and the salaried officer ‘knows’ that the member was acting on that assumption because the email he or she received told them that. In the circumstances it would be wrong to now deny that there was an agreement to repay the money in the very circumstances that have arisen. And it would be wrong to argue that the notes do not reflect what was said because the officer had the chance to reply and say ‘no you misunderstand my position – the state of affairs you believe exists do not exist’.
Now it’s not a clear cut argument, just as silence is not acceptance a failure, or a choice not to respond may not ‘induce’ the member to believe that their version of the conversation is correct (in the way a positive reply does) but it is at least argument – ‘You knew that I was depositing the money because I was relying on your promise to repay it and you knew that was my assumption because it was in the notes I sent you and you did not reply to tell me that my understanding was wrong. I acted on that assumption, you knew I was acting on that assumption, you cannot now deny that the agreement that I recorded was in fact the agreement we reached’.
Where it’s just a file note of the conversation, mere silence would not be seen as endorsement of what the note says. In those cases the member may have their version of the conversation, the salaried officer their own version (perhaps recorded in their own file note) and the mere fact that the member sent a version that the officer disagreed with would not put the officer into a position of being able to deny the conversation. An email that say ‘you agree you are a degenerate jerk who has abused your position to harm me’ would not warrant a response, even if the recipient does not agree with it. Mere silence is not acceptance.
The test is that the party (in this context the salaried officer) must induce (and proving silence was an ‘inducement’ would be more difficult than a positive reply, but I suggest not impossible) another (in this context the member) to make an assumption that a state of affairs exists, knowing [the member] would act on that assumption to the member’s harm or detriment. It has to induce the member to do, or not do something that he or should would otherwise have not done, or would have done, if they did not believe that the relevant ‘state of affairs’ did exist.
There is no legal obligation to reply to an email that contains a summary of a conversation but depending on the nature of the conversation, particularly where the notes indicate that the author is going to do something, or not do something to their detriment because they believe there has been a promise or commitment from the other person, then there could be legal implications arising out of the response, including a failure to respond.