Federal Court of Australia

Rossi v Qantas Airways Ltd [2024] FCAFC 144

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

A.    INTRODUCTION

1    This appeal concerns whether the appellant, Ms Sara Rossi, was incapable by reason of mental infirmity from entering into a deed of settlement (Deed) with the respondent, Qantas Airways Limited (Qantas) in workers’ compensation proceedings in the County Court of Victoria (County Court) in 2008. That question has arisen in this Court because Ms Rossi seeks leave to bring proceedings against Qantas under the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) for alleged discrimination on the basis of sex and disability during her previous employment with Qantas. In order to obtain leave, it is necessary (although not sufficient) for Ms Rossi to have the Deed, which released Qantas from all claims arising from Ms Rossi’s employment, set aside.

2    For reasons published in Rossi v Qantas Airways Limited (No 4) [2023] FCA 1008 on 28 August 2023 (primary judgment or PJ), the primary judge dismissed Ms Rossi’s application to set aside the Deed. On 5 September 2023, the primary judge made a further order dismissing Ms Rossi’s originating application and granting liberty to apply with respect to costs.

3    By her amended notice of appeal dated 7 June 2024, Ms Rossi appeals the 28 August 2023 judgment and the further orders made on 5 September 2023. For the reasons which follow, the appeal must be dismissed.

B.    FACTUAL BACKGROUND

4    The facts of this matter are comprehensively set out in the primary judgment. For present purposes they may be summarised uncontroversially as follows. Ms Rossi was employed as a long-haul flight attendant by Qantas from 1988 until 2003. Her employment terminated in 2003 when she applied, and was accepted, for voluntary redundancy.

5    In August 2006, Ms Rossi filed a worker’s claim form under the Accident Compensation Act 1985 (Vic) alleging that she had suffered a workplace injury during her employment with Qantas in the period 2001-2003. Qantas (as a self-insurer) rejected the claim in September 2006. From about April or May 2007, Ms Rossi was in contact with a regional franchisee firm of Maurice Blackburn Cashman (MBC) operated by Mr John McCristal. Mr McCristal acted for Ms Rossi in respect of her claim on a “no win, no fee” basis from September 2007. On 19 October 2007, Ms Rossi instituted proceedings against Qantas in the County Court in which she claimed weekly compensation from 1 July 2003 together with medical and other expenses. In its defence, Qantas denied liability on the basis that Ms Rossi’s injury did not arise out of the course of her employment nor was it a significant contributing factor. The matter was subsequently listed for hearing in November 2008.

6    Mr McCristal arranged for Ms Rossi to attend an assessment with Dr John Gill, a psychiatrist. Dr Gill subsequently produced a report dated 27 November 2007 in which he diagnosed Ms Rossi as suffering from chronic adjustment disorder with mixed anxiety and depressed mood and concluded that this psychiatric injury had been caused by her employment with Qantas. He considered at that point that she had no present capacity for work and that any future capacity was unlikely.

7    Ms Rossi was also assessed by a psychiatrist, Dr Ian Jackson, in early 2008 on behalf of Qantas. Dr Jackson concluded that the most appropriate diagnosis of her condition was that of a major depressive disorder with associated anxiety and specific phobias.

8    Dr Gill assessed Ms Rossi again in September 2008. On this occasion, Dr Gill had the benefit of further information about the history of her medical condition, including medical records indicating that Ms Rossi’s depressive illness long predated the employment events previously said to have caused it and that she had been the subject of prior extensive medical treatment for the condition. As a result, in a further report dated 15 September 2008, Dr Gill altered his opinion as to the causation of Ms Rossi’s condition. He now concluded that the work-related contribution to her condition was “a relatively minor factor in causation of her depressive illness” compared to pre-existing factors identified in his report. He estimated that Ms Rossi had a work-related psychiatric impairment of 5% and a 12% level of impairment attributable to work-related stress injury. In a supplementary report dated 10 October 2008, Dr Gill repeated the estimate of 5% impairment attributable to work-related causal factors, and estimated a psychiatric impairment of 35% impairment attributable to non-work-related factors.

9    On 9 October 2008, Mr McCristal advised Ms Rossi by letter that a settlement conference with Qantas’ lawyers was scheduled for 27 October 2008. On 27 October 2008, Ms Rossi attended a pre-conference meeting with Mr McCristal and a barrister retained to act for her, Mr Brent Hutchinson. At this meeting, Ms Rossi was advised of Dr Gill’s alteration of his conclusion concerning the causation of her psychiatric condition. Ms Rossi, Mr McCristal and Mr Hutchinson then attended the settlement conference, during which Qantas made a settlement offer of $50,000 plus party-party legal costs. It was agreed that the conference would be adjourned and resume on 29 October 2008. That evening, Ms Rossi had a telephone discussion about what had occurred with her treating psychologist, Ms Amanda Allan.

10    On 28 October 2008, Ms Rossi attended a consultation with her general practitioner, Dr Gillian Singleton. The same day, Mr McCristal prepared a letter to Ms Rossi entitled “Your Claim” which gave advice about Qantas’ offer of the previous day and her prospects of success in the litigation and in any alternative negligence claim.

11    During the course of the resumed settlement conference on 29 October 2008, Ms Rossi met separately with Mr McCristal and Mr Hutchinson, and Mr McCristal read out to her the “Your Claim” letter. Qantas increased its offer to $75,000 compensation and $40,000 for costs at the conference. Ms Rossi signed the Deed and the “Your Claim” letter and Mr Hutchinson signed terms of settlement reflecting Qantas’ improved offer on her behalf. The Deed contained a term releasing Qantas from all claims, actions, suits, costs or demands at law, in equity or under statute arising out of or relating to the course of Ms Rossi’s employment at Qantas.

12    That evening, Ms Rossi contacted Dr Singleton, who arranged for Ms Rossi’s admission to a psychiatric hospital. Ms Rossi attended the hospital on 1 November 2008 but ultimately declined to be admitted. On 1 December 2008, some weeks after Ms Rossi had received copies of the settlement documents in the mail, she had a telephone conversation with Mr McCristal. She subsequently refused to accept the settlement sum. After Qantas had paid the sum into MBC’s trust account, Ms Rossi instructed that the amount be returned to Qantas, but Qantas refused to accept repayment and the amount was ultimately (in 2012) paid by MBC to the Supreme Court of Victoria (Funds in Trust).

13    In the decade after the settlement conference, Ms Rossi made contact with a wide range of lawyers in an attempt to reagitate her claims against Qantas, and eventually secured the services of the lawyers representing her in these proceedings. On 21 December 2018, Ms Rossi lodged a complaint in the Australian Human Rights Commission (AHRC) alleging that she had been the subject of unlawful sex discrimination (including sexual harassment) and disability discrimination during her employment with Qantas, and had also been the subject of unlawful disability discrimination on the part of Mr McCristal and MBC.

14    On 23 July 2019, a delegate of the President of the AHRC terminated Ms Rossi’s complaint pursuant to ss 46PF(1)(b) and 46PH(1)(b) of the AHRC Act on the basis that it had been lodged more than 12 months after the allegedly discriminatory conduct. In doing so, the delegate took into account the length and reasons for the delay and concerns about the merits of the complaint. The result of this was that, under s 46PO(3A)(a) of the AHRC Act, Ms Rossi was barred from making an application to this Court or the Federal Circuit and Family Court of Australia in respect of the unlawful discrimination the subject of the complaint unless the court granted leave to make the application.

C.    PROCEEDINGS IN THIS COURT

15    On 20 September 2019, Ms Rossi commenced proceedings in this Court against Qantas, Mr McCristal and MBC claiming unlawful discrimination on the same grounds as she had in her complaint to the AHRC. She also made various claims within this Court’s accrued jurisdiction, including that she had entered into the Deed under duress, due to the unconscionable conduct of Mr McCristal and/or MBC, and contrary to the operation of various identified Victorian statutory provisions. Various orders to set aside the Deed were sought. Leave to make the application was sought pursuant to ss 46PO(1) and 46PO(3)(a) of the AHRC Act.

16    Ms Rossi’s application for leave was initially considered by Gleeson J who, on 31 July 2020, ordered that leave to make the application against Mr McCristal and MBC was refused because of the lack of a reasonably arguable case and prejudice caused by the delay: Rossi v Qantas Airways Limited (No 2) [2020] FCA 1080. Insofar as the application concerned Qantas, Gleeson J ordered that it should be adjourned pending the separate determination of Ms Rossi’s application to set aside the Deed, on the basis that if that application failed, the application for leave would be a futility.

17    On 1 March 2021, Ms Rossi filed an amended originating application in which, in respect of the Deed, she sought orders:

(a)    declaring Ms Rossi to be a handicapped person within the meaning of O 15 of the County Court Rules of Procedure in Civil Proceedings 1999 (Vic) (CC Rules) as operative at the date the Deed was signed; and

(b)    declaring the Deed void by operation of s 78 of the County Court Act 1958 (Vic) (CC Act) and O 15 of the CC Rules.

18    In initial written opening submissions dated 11 November 2020, Ms Rossi submitted that, in addition to having lacked legal capacity to enter into the Deed by reason of having been a “handicapped person” within the meaning of the CC Rules, she had also been the subject of undue influence and unconscionable conduct (while not relying on duress) on the part of her lawyer, Mr McCristal. In written opening submissions in reply dated 1 March 2021, Ms Rossi abandoned reliance on undue influence and unconscionable conduct. However, it remained a substantial part of her case that she had been the subject of various instances of bullying, improper pressure and unsatisfactory professional conduct on the part of her lawyers — particularly Mr McCristal. As articulated in her closing submissions in reply dated 11 February 2022, Ms Rossi’s case was that it was the effect of her lawyers’ conduct upon her pre-existent disability that caused her to lack the capacity to enter into the Deed at the time she signed it. In this respect, the closing submissions in reply included the following propositions:

… In the Applicant’s case, her capacity was negatively affected by the significant stress that was brought to bear on her not by the litigation per se, but the way in which she was prepared for it, and given advice, culminating with her signing the relevant Deed on 29 October 2008.

….

Capacity to settle is crucial to the integrity of the legal system and does not, under the Rules, depend upon whether a solicitor was aware there were issues with capacity or not. What is clear in this case, is that the Applicant has a very serious psychiatric injury and Mr McCristal did nothing to prepare her for settlement discussions (aside from one letter which misrepresented those discussions as a “mediation”). From failing to return her calls, to failing to explain his purported views on the limitations on the range of damages likely, given his reading of Dr Gill’s report, his preparation of Ms Rossi left a lot to be desired. It is clear from the evidence that all issues concerning her evidence and the likely damages available were raised for the first time on 27 October 2008. If the Court believes the Applicant that she also experienced pressure from Mr McCristal, from yelling at her in a phone call on 28 October 2008 to threatening her with legal costs, that is evidence that indicates this was a case in which someone with her diagnoses, who could have had capacity, became someone who did not have capacity.

19    Ms Rossi’s closing submissions in reply also made clear that her case in this respect was heavily reliant on acceptance by the Court of her account of the events of 27-29 October 2008:

In this context, Qantas Submissions at paragraphs [26] to [27] are incorrect as they seek to have the Court decide capacity without reference to the actual circumstances at the time of signing the Deed. While the Applicant’s case is no longer one of duress, unconscionable conduct, or undue influence, the fact the Applicant felt pressured by the way she was treated (assuming the Court adopts the Applicant’s version of events) is a factor relevant to Dr Parmegiani’s assessment of her likely response based on her disability and from that he is qualified to opine on the likely impact on her cognition including precisely what was going on when she signed the Deed.

It is a matter for the Court as to what it does with the highly unsatisfactory approach Mr McCristal took to his evidence, given he is an officer of the Court. Likewise the Court may wish to comment on the appropriateness of the way in which Ms Rossi was treated by Mr McCristal, as already outlined in these and Earlier Submissions. However, the claim that Ms Rossi lacked capacity does not rely on any such findings. It relies on the Court accepting her version of events and the expert evidence of Dr Parmegiani as to the likely impact of those events on her ability to understand what she was doing when she signed the Deed resulting from her disability, specifically, that she [was] unable to understand the nature and effect of signing the deed at the relevant time.

20    In respect of the relevant events, Ms Rossi relied on four affidavits made by herself. In addition, she relied on evidence given by her treating general practitioner, Dr Singleton, and her treating psychologist, Ms Allan, who gave lay evidence relevant to the events of 27-29 October 2008 as well as expert evidence concerning Ms Rossi’s mental health. She also relied on expert evidence given by Dr Enrico Parmegiani, a forensic psychiatrist. Qantas relied on evidence given by Mr McCristal and Mr Hutchinson, and expert evidence given by Dr Leonard Lee, a medico-legal psychiatrist. There was an additional solicitor’s affidavit which annexed a number of documents produced as a result of discovery. The hearing of the evidence occupied five hearing days (9-12 August, 8 November 2021) and, in addition, there were extensive written and oral closing submissions (the latter of which were made on 16 February 2022). The proceedings were wholly conducted by video link.

D.    THE PRIMARY JUDGMENT

21    Having regard to the basis upon which Ms Rossi advanced her case, it was necessary for the primary judge to make findings about a number of matters of contested fact concerning the events of 27-29 October 2008. The primary judge’s analysis of the evidence concerning these matters proceeded upon findings made about the credit of the key witnesses to those events, namely Ms Rossi herself, Mr McCristal and Mr Hutchinson. The primary judge concluded that some of Ms Rossi’s evidence was unreliable and exaggerated, and preferred the evidence of Mr McCristal and Mr Hutchinson on some matters over that of Ms Rossi, or concluded that she was not reasonably satisfied that events occurred in the manner claimed by Ms Rossi: PJ at [216]-[222]. The primary judge considered that Mr McCristal’s evidence was inherently credible and more reliable than that of Ms Rossi, and largely accepted his evidence as to the key events and preferred it over parts of Ms Rossi’s evidence, although she observed that he did not have a good independent recollection of all events, his evidence was at times “clumsy”, and he was mistaken about some factual matters: PJ at [223]-[230]. The primary judge also accepted the evidence of Mr Hutchinson, whom she considered gave his evidence in a straightforward and uncontentious manner and whose credibility was not impugned: PJ at [231].

22    The primary judge made detailed findings of fact concerning the events of 27-29 October 2008 (including the events leading up to the settlement conference): PJ at [239]-[291]. It is not necessary to attempt to summarise those findings beyond the following:

(1)    The primary judge rejected key aspects of Ms Rossi’s evidence about the conduct of Mr McCristal and Mr Hutchinson (for example, PJ at [251], [254], [257], [261], [268], [274], [277], [289]) and did not accept that there was conduct on the part of Mr McCristal or Mr Hutchinson that might constitute duress or undue pressure to settle or sign: PJ at [287].

(2)    The primary judge found that Ms Rossi’s evidence concerning her symptoms and capacity to communicate her state of mind and instructions was exaggerated and unreliable: PJ at [257], [268], [269], [286], [287]. While Ms Rossi displayed anger, disappointment and upset, there was no overt sign of a lack of mental capacity: PJ at [258], [270], [271], [287]-[288].

(3)    The primary judge found that Ms Rossi exhibited an understanding of the settlement process, the advice she was given by her lawyers and the key aspects of the settlement itself: PJ at [247]-[250], [254]-[255], [257], [264]-[267], [272]-[274], [276], [281]-[286].

23    In respect of the expert evidence, the primary judge first accepted Dr Singleton’s evidence that Ms Rossi presented as depressed and unwell at the time of the settlement conference and that there may have been some limited impairment of Ms Rossi’s capacity as a result of the state of her mental health, but did not regard this finding as determinative of capacity: PJ at [317], [415]. The primary judge gave no weight to Ms Allan’s opinion as to Ms Rossi’s capacity to enter into the Deed: PJ at [347]-[355]. As to Dr Parmegiani, the primary judge accepted his evidence that: Ms Rossi suffered a major depressive disorder; notwithstanding this, Ms Rossi was in general terms able to understand the general nature and effect of the Deed; and she was generally able to understand any advice given by her lawyers regarding the nature of the Deed and its purpose, including its possible consequences and especially the risks in terms of legal costs: PJ at [359], [376], [413]. The primary judge, however, gave no real weight to Dr Parmegiani’s opinion concerning Ms Rossi’s subjective state of mind during the settlement conference because it was premised on her account as to what had occurred, key features of which had been rejected in the primary judge’s findings of fact: PJ at [368]-[374]. Finally, the primary judge accepted Dr Lee’s evidence that it was more probable than not that Ms Rossi had the mental capacity to understand the effects or general nature of the Deed at the time of entering into it, if its effect or general nature had been explained to her: PJ at [392]-[393], [414].

24    The primary judge considered that the appropriate test for capacity in the case, having regard to the terms of the Deed not being unduly complex, was that it was sufficient that Ms Rossi had capacity to understand something of her prospects of success, that any claims against Qantas would be resolved and come to an end if a settlement were achieved, that there would be no necessity for a trial, and that she would be paid the relevant sums had an explanation of this nature been given to her: PJ at [395]-[396]; see also at [213]-[215]. The primary judge concluded that Ms Rossi understood, prior to her attendance at the conference on 29 October 2008, that: she was attending a settlement meeting to try to settle her dispute with Qantas prior to trial; Dr Gill had revised his opinion as to the level of impairment caused by her work and the reason for this; there was an initial settlement offer of $50,000; she had to return to the mediation on 29 October 2008; there was an offer she had to consider (which she regarded as “pitiful”); and that there was a proposed clause purporting to prevent her discussing her experiences at Qantas: PJ at [400], [402]-[403]. The primary judge found that Ms Rossi was sufficiently engaged to report information regarding such matters to Ms Allan and to Dr Singleton: PJ at [402], [403].

25    As to the conference on 29 October 2008 at which the Deed was signed, the primary judge found that Ms Rossi: had the Your Claim letter read to her; understood the offer was increased from $50,000 to $75,000; had read to her the terms of settlement and the Deed; noted the original restriction on not being able to talk about the settlement with her family; took into account the costs consequences if she did not sign; and was engaged with the settlement process: PJ at [406], [408]. The primary judge was not satisfied that Ms Rossi’s state of mind was such that she was or felt paralysed, overwhelmed, in a black hole, or otherwise unable to comprehend what was happening. Nor was she satisfied that, at the time of the signing of the Deed, Ms Rossi was in a different state whereby a perception that she was under duress denied her capacity, in which she was unable to think properly or in which she was robbed of autonomy with respect to the Deed: PJ at [401], [410].

26    The primary judge concluded that Ms Rossi had not discharged the onus to prove that she lacked the mental competence on 29 October 2008 to understand, if the Deed had been sufficiently explained to her, what was provided for under that Deed and to enter into it, and considered that the expert evidence of Dr Lee and Dr Parmegiani supported this conclusion: PJ at [411], [413]-[414].

E.    APPEAL GROUNDS

27    The appellant relied on the following appeal grounds in her amended notice of appeal:

1.    The primary judge erred in the construction and application of Order 15.01 of the [CC Rules], in determining whether [Ms Rossi] was a “handicapped person” within the meaning of Order 15.01, specifically, the primary judge:

a.     incorrectly applied the test under Order 15.01 of [the CC Rules] as to whether [Ms Rossi] was “incapable by reason of…mental infirmity of managing his affairs in relation to the proceeding.” ([PJ at] [65] and [398]).

2.     The primary judge erred in excluding and/or giving insufficient weight to evidence both before and after the events that took place on 27, 28 and 29 October 2008, specifically the primary judge:

a.     failed to properly apply the principles set out in Owners of Strata Plan No 23007 v Cross (2006) FCA 900 at 68 “…Courts are to-day, universally agreed that both prior and subsequent mental condition, within some limits, are receivable for consideration; stress being always laid on the truth that these conditions are merely evidential towards ascertaining the mental condition at the precise time of the act in issue.” ([PJ at] [206])[;]

b.     excluded evidence about [Ms Rossi’s] mental state and actions after the conclusion of the conciliation on 29 October 2008 ([PJ at] [206]), including:

i.     [Ms Rossi’s] refusal to accept the settlement money and the exchange of documents required to give effect to the settlement under the Deed ([PJ at] [206]);

ii.     [Ms Rossi’s] attempted admission at Delmont Hospital ([PJ at] [199]-[200], [291] and [331]);

iii.     the conversation between [Ms Rossi] and Mr McCristal on 1 December 2008, where [she] told him “she did not think she was in an emotionally fit state” to agree to the Deed ([Ms Rossi’s initial written opening] submissions [dated] 11 November 2020 [at] [25]-[27])[;]

c.    inappropriately applied findings dealing with the events that took place on 27 October 2008 to her conclusion about [Ms Rossi’s] capacity on 29 October 2008. [PJ at] [257] and [271];

d.     failed to take into account material evidence by [Ms Rossi] that she was suicidal on 29 October 2008[; and]

e.     failed to give weight to the evidence about the duress and undue pressure placed on [Ms Rossi] by Mr McCristal and Mr Hutchinson at the time of entering the deed on 29 October 2008 and the impact such conduct had on [her] capacity. [PJ at] [397].

3.     The primary judge erred in applying the relevant statutory test under Order 15.01 of [the CC Rules], by significantly understating the complexity of the transaction of the Deed. [PJ at] [371] and [406].

4.     The primary judge erred in making adverse findings of credit against [Ms Rossi] in circumstances where such adverse findings were made in relation to material objective facts with those facts being the basis for her Honour’s rejection of [Ms Rossi’s] claim.

5.     The primary judge erred in determining that the evidence of Dr Leonard Lee was admissible. [PJ at] [391] and [414].

6.     The primary judge erred in limiting her consideration of [Ms Rossi’s] medical evidence to the evidence of Dr Enrico Parmegiani to the exclusion of the evidence of Amanda Allan and Dr Gillian Singleton in circumstances where the later were the only contemporaneous medical evidence as to [Ms Rossi’s] mental state at the time of entering the Deed.

7.     The primary judge erred in the interpretation and application of Dr Enrico Parmegiani’s evidence that although [Ms Rossi] had capacity to understand the general nature of the Deed, she did not have capacity at the time she signed it. [PJ at] [360], [366], [376] and [413].

8.     The primary judge erred in the treatment of Ms Allan’s medical notes, by using them to prove underlying facts asserted therein.

9.     The primary judge erred in relying on the failure of Mr McCristal and Mr Hutchinson to identify an issue about [Ms Rossi’s] capacity at the time, to be indicative of her state of mind when she entered the deed on 29 October 2008. [PJ at] [407] and [410], particularly in circumstances where they gave evidence that they were not listening to [Ms Rossi]. [PJ at] [265].

10.     The primary judge erred in making significant factual and credit findings, which formed the basis of her dismissal of [Ms Rossi’s] claim, following a delay of 18 months after the conclusion of evidence.

28    Grounds 1, 2, 3 and 5 are said by the appellant to involve errors of law. The other appeal grounds are said to involve errors of fact or errors in the inferences drawn from findings of fact.

F.    STATUTORY FRAMEWORK

29    The question of the validity of the Deed was argued and determined below by reference to provisions of the CC Rules concerning the compromise of proceedings by persons under disability. Ms Rossi’s application for a declaration that the Deed was void relied upon s 78 of the CC Act but, as the primary judge observed, s 78 is concerned only with the rule-making power of the County Court in respect of civil proceedings in that court and is not otherwise relevant: PJ at [12]. Order 15 of the CC Rules, as operative at 29 October 2008, was treated as the statutory provision governing the validity of the Deed. Order 15 relevantly provided:

PERSON UNDER DISABILITY

15.01    Definitions

In this Order –

handicapped person means a person who is incapable by reason of injury, disease, senility, illness or physical or mental infirmity of managing his affairs in relation to the proceeding;

person under disability means minor or handicapped person.

…

15.08     Compromise of claim by a person under disability

(1)     Where in a proceeding a claim is made by or on behalf of or against a person under disability, no compromise, payment of money or acceptance of an offer of compromise under Order 26, whenever entered into or made, shall so far as it relates to that claim be valid without the approval of the Court.

…

(5)     Where the acceptance of an offer of compromise is approved, the person under disability shall be taken to have made or accepted the offer at the time of approval.

30    Ms Rossi’s case below proceeded on the premise that if the Deed was invalid under O 15.08, it was invalid for the purposes of proceedings in this Court. The correctness of that premise is not beyond doubt. The effect of O 15.08 is confined by the scope of the rule-making power in s 78 of the CC Act, which does not extend beyond the making of rules of practice for civil proceedings in the County Court. Order 15.08(1) in terms only invalidates a compromise of a claim in a proceeding before the Court, where it involves a person under disability and is not approved by the Court, only “so far as it relates to that claim”. The release contained in the Deed in respect of all claims arising from Ms Rossi’s employment with Qantas is not confined to her claim in the County Court and encompasses the claims in her application before this Court. It is not readily apparent why any invalidity under O 15.08(1) for the purpose of proceedings before the County Court would, of itself, operate to deny the force and effect of the release under general law for the purpose of proceedings before this Court.

31    However, it is not necessary for the purpose of this appeal to determine this issue to finality, for two reasons. First, the respondent did not raise the point either below or in the appeal. Second, as will shortly be explained, the principles applied by the primary judge to determine whether Ms Rossi was a handicapped person under O 15.01 for the purpose of the question of invalidity under O 15.08(1) are the same as those applied under the general law to the question of the invalidity of a transaction due to mental incapacity. Neither party contended that different principles should be applied. The application of those principles to the facts would yield the same result concerning the validity of the Deed under O 15.08(1) and under the general law. The issue therefore lacks materiality.

G.    APPEAL PRINCIPLES AND GROUND 10

32    The appellant contended, and the respondent accepted, that the correctness standard of appellate review applies to this appeal. The correctness standard treats the legal criterion applied by the primary judge to reach the conclusion the subject of the appeal as one demanding a unique outcome which the appellate court must determine for itself, but makes due allowances for such advantages as may have been enjoyed by the primary judge in the conduct of the hearing: Moore (a pseudonym) v The King [2024] HCA 30 (Moore) at [14]-[15]; Warren v Coombes  (1979) 142 CLR at 552; [1979] HCA 9 (Warren v Coombes). These advantages “derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole”: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 (Fox v Percy) at [23]. However, these advantages, and the concomitant “[n]atural limitations” applying to an appellate court, may be diminished or not exist dependent upon the circumstances in which the trial was conducted, including where it proceeded wholly or substantially by reference to documentary or affidavit evidence: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR at 557; [2018] HCA 30 at [34].

33    The legal criterion required to be applied by the primary judge here was whether Ms Rossi was a “handicapped person” within the meaning of O 15.01. Because the consequence of the application of that criterion is determinative of the validity of the Deed under O 15.08(1), it is one that plainly demands a unique outcome. Order 15.08(1) cannot be understood as tolerating reasonable differences of opinion about the validity of a compromise the purported consequence of which is to terminate the proceeding.

34    It is convenient at this point to consider ground 10 of the appeal, because it intersects with the question of the extent to which allowance should be made for the advantage of the primary judge in the application of the correctness standard. As pleaded in the amended notice of appeal, the appellant contends by this ground that “the primary judge erred in making significant factual and credit findings” in the primary judgment founding her dismissal of Ms Rossi’s claim “following a delay of 18 months after the conclusion of the evidence”. However, as articulated in the appellant’s oral submissions, this was not advanced as a “stand-alone” ground of appeal but one which was called in aid of the other appeal grounds, as “a contextual issue … particularly going to the level of advantage held by the judge at first instance” (Transcript, p 2 lines 22-24). The appellant submitted that the period of 18 months between the hearing of the evidence and the publication of the judgment dissipated the weight which should be assigned to the primary judge’s advantage in seeing and hearing the witnesses give their evidence and her findings as to the witnesses’ credit. The appellant cited in support of this submission the Full Court decision in Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17; [2004] FCAFC 189 (Expectation).

35    In Expectation, the Court considered a complaint by the appellant of a delay of about 21 months between the completion of the evidence and the publication of reasons. While the Court stated (at [69]) that “[d]elay between the taking of evidence and the making of a decision is not, of itself, a ground of appeal”, it recognised (at [70]) that the mere fact of a long delay does weaken a trial judge’s advantage and that such a delay must be taken into account in appellate review of the judge’s findings. The Court said (at [72]-[73]):

In cases not affected by delay, an appellate court is entitled to assume that the mere failure to refer to evidence does not mean that it has been overlooked or that other forms of error have occurred. However, where there is significant delay, no favourable assumptions can be made. In such circumstances, it is up to the trial judge to put beyond question any suggestion that he or she has lost an understanding of the issues. Where there is significant delay, it is incumbent upon a trial judge to inform the parties of the reasons why the evidence of a particular witness has been rejected. It is necessary for the trial judge to say why he or she prefers the evidence of one witness over the evidence of other witnesses…

Of course, where the trial judge, notwithstanding significant delay, demonstrates by his or her reasons that full consideration has been given to all of the evidence, the parties and the public may be satisfied that the delay has not affected the decision. More specifically, if the reasons demonstrate that the delay has not weakened the trial judge’s advantage, confidence will be maintained in the decision…

36    The judgment the subject of this appeal is one which, in our view, demonstrates a comprehensive consideration of all the evidence and, in respect of the events of 27-29 October 2008, provides detailed reasons as to why the evidence of Mr McCristal and Mr Hutchinson was preferred over that of Ms Rossi. In particular, the adverse credit findings made by the primary judge in respect of Ms Rossi at [216] are explicated by a number of specific examples provided by the primary judge at [217] of inconsistencies and implausibilities in her evidence when compared to the documentary evidence. The primary judge also pointed (at [218]) to examples of embellishments in Ms Rossi’s evidence over the course of her four affidavits and (at [219]-[222]) of inconsistences in her evidence as to the accuracy of her recollections and the state of her memory. It is not necessary for any “favourable assumptions” to be made about the primary judge’s consideration of the evidence.

37    We conclude that the primary judge’s reasons demonstrate that the delay complained of has not weakened her advantage as the trial judge. That advantage includes having seen and heard all the witnesses give their evidence over the course of five hearing days and having been “immersed in the milieu of the trial”: Aldi Foods Pty Ltd v Moroccanoil Israel Ltd (2018) 261 FCR 301; [2018] FCAFC 93 (Aldi) at [46] (Perram J). Due weight must be given to this advantage in our consideration of the appeal. This means that we would not depart from the primary judge’s findings of fact involving the credibility and reliability of the witnesses unless those findings are shown to be wrong by reference to incontrovertible facts or uncontested testimony or they are contrary to compelling inferences. As earlier explained, the findings of fact made by the primary judge concerning the events of 27-29 October 2008 were highly dependent upon her credit findings in respect of Ms Rossi, Mr McCristal and Mr Hutchinson, and the appellant therefore faces this hurdle in any challenge to those findings. However, in respect of inferences drawn from undisputed facts or the facts established by the primary judge, while we must give respect and weight to the conclusion of the primary judge, if we reach a different conclusion we should give effect to it and thereby correct error: Warren v Coombes at 551; Fox v Percy at [23]; Aldi at [2]-[3] per Allsop CJ and at [46]-[48] per Perram J.

H.    GROUNDS 1 AND 3

38    Appeal grounds 1 and 3, as articulated in the appellants’ written and oral submissions, involve intermingled contentions that the primary judge erred by applying the wrong test in determining whether Ms Rossi was a “handicapped person” within the meaning of O 15.01 and in her application of the test to the terms of the Deed. The appellant accepted that, in the application of O 15.01 to the facts of Ms Rossi’s case, the question of whether she was incapable by reason of mental infirmity of managing her affairs was to be determined by reference to the transaction constituted by the Deed. Mental capacity was to be measured, it was submitted, by reference to the particular circumstances of the transaction in question and, in this case, required Ms Rossi to be capable, at the time of executing the Deed, of: (a) understanding and processing the information with which she was presented; (b) making a decision about that information; (c) communicating that decision to her lawyers; and (d) yielding claims against Qantas in the practical implementation of the Deed. The appellant submitted that the primary judge erred in concluding that the requisite mental capacity was satisfied, relying upon evidence given by Dr Parmegiani concerning the distinction between awareness of events and cognitive processing of information, access to expressive language and sufficient psychological strength to do something other than acquiesce in signing the document.

39    The primary judge undertook a review of the authorities relevant to mental capacity in varying contexts (PJ at [38]-[65]) and derived from that analysis the criterion that Ms Rossi’s capacity to enter into the Deed was to be measured by whether she would have understood the nature and effect of the transactions then contemplated if an explanation had been given to her: PJ at [70]. As earlier stated, the primary judge considered that the identified criterion would be satisfied if Ms Rossi had the capacity to understand something of her prospects of success, that any claims against Qantas would be resolved and come to an end if a settlement was achieved, that there would be no necessity for a trial, and that she would be paid the sums of money for which the Deed provided: PJ at [71] and [396].

40    We are not persuaded that this approach was in error. There is no dispute that the guiding principle in respect of the impugnment of a specific transaction on the ground of mental incapacity is that identified by the High Court under the general law in Gibbons v Wright (1954) 91 CLR 423 (Gibbons v Wright). The essential element is that the relevant party to the transaction must have the capacity to understand the general nature of the transaction upon it being explained. However, this does not involve the application of a fixed standard, since “the mental capacity required by the law in respect of any instrument is relative to the particular transaction which is being effected by means of the instrument” (at 438). This test thereby takes into account the degree of complexity of the transaction in question. It has been described as “task-specific”, so that a person may have the capacity to perform one task but lack the capacity to perform a different task: Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369 at [175]. It is also time-specific, in that it is recognised that a party suffering from a mental infirmity may have different levels of capacity at different times, with the test being applied to the time at which the party entered into the transaction: A v N [2012] NSWSC 354 (A v N) at [22]; Rappard v Williams [2013] NSWSC 1279 at [76].

41    The fourfold test posited by the appellant and reproduced at [38] above appears to be substantially derived from Re Erdogan’s Application: Erdogan v Ekici (2012) 36 VR 579; [2012] VSC 256 (Erdogan). As the primary judge observed (PJ at [64] and [354]), the context of this decision is significant. Erdogan concerned whether the plaintiff, who had an acquired brain injury as a result of a vehicle collision, should have access to the settlement sum paid in respect of the injury which had been paid into court some years earlier on the basis that he now had the capacity to manage his affairs. This required determination as to whether the plaintiff was a “handicapped person”, meaning “a person who is incapable by reason of injury, disease, senility, illness or physical or mental infirmity of managing his or her affairs”, under the Supreme Court (General Civil Procedure) Rules 2005 (Vic). The test applied by the Court (Dixon J) was, following Gibbons v Wright, “whether the beneficiary has sufficient cognitive function to be capable of understanding the general nature of what he is doing by his or her participation in managing his or her affairs” (at [70]), with the plaintiff’s “affairs” involving the self-management of property and financial affairs both in the present and future (at [71]). The personal circumstances which defined the focus of the required inquiry were said to include: the nature of the person’s assets and liabilities; their understanding about sources of income, the reliability of supply and amount, and the obligations of taxation, expenses and debt; tasks and activities associated with the management and maintenance of assets; tasks or activities involved in everyday financial transactions; the protection of the security of assets; the management of debt obligations; and the appreciation of capital risks and income risks and the appropriate uses for debt (at [76]). In this context, Dixon J described the evaluative task required as follows:

[74]    Evaluating such capacities or competencies requires identification of the cognitive ability to implement or participate in processes, particularly:

(a) An ability to identify and comprehend the existence of an event, transaction or issue which requires management - a decision or a choice.

(b) Once the matter is identified, insight into, and understanding of, the matter is needed. The person must be able to understand or appreciate and recall the relevant facts, the alternatives available, whether by action or inaction, including seeking advice or assistance where appropriate, with sufficient clarity to permit rational choice or decision.

(c) The person must have the capacity to reason, to make a rational decision or choice about the steps to be taken, or avoided to achieve an appropriate outcome or otherwise give effect to or implement a transaction.

[75]     What needs to be demonstrated is the capacity to understand, absorb and retain information, whether numerical, language, or spatially based, a capacity to process that information rationally, a capacity to balance risk and need in context, and a capacity to appreciate consequence as opposed to the immediate.

42    We agree with the primary judge’s observation (PJ at [64]) concerning Erdogan that “[t]he focus of the assessment of capacity in the context of the compromise of litigation must be narrower”. The task-specific nature of the test in Gibbons v Wright means that the nature of the consideration required to assess capacity in relation to the closed event of a past compromise of litigation must have a more confined scope than in the circumstances described in Erdogan, where capacity was required to be assessed by reference to a wide range of potential future transactions and other events. The need to adapt the test to these differing circumstances recognises that a litigant may have the capacity to decide whether to settle litigation but not have the capacity to administer the settlement sum received as a result: Masterman-Lister v Brutton & Co [2003] 3 All ER 162; [2003] 1 WLR 1511; [2002] EWCA Civ 1889 (Masterman-Lister) at [27] (a decision followed in a number of the Australian cases).

43    Cases in which the test in Gibbons v Wright has been applied to statutory analogues of O 15.01 disclose that the assessment required in respect of a compromise of litigation includes consideration of whether the relevant litigant had the capacity to understand the context of the proposed compromise, namely the nature of the litigation the subject of the compromise, its purpose, its possible outcomes, and the risks (including as to costs) associated with it. The degree of complexity of the litigation will be relevant in this context: Dalle-Molle v Manos (2004) 88 SASR 193; [2004] SASC 102 at [23], [26]. As to the compromise itself, the litigant must have the capacity to understand the general purport of the transaction if a proper explanation of it had been given. This looks to a hypothetical explanation, not to the explanation or advice that was actually given (or not given): Hanna v Raoul [2018] NSWCA 201 (Hanna v Raoul) at [161]-[162]. The litigant must be able to comprehend the legal advice and the nature of the legal and other consequences which will be brought about by the compromise: Goddard Elliott (a firm) v Fritsch [2012] VSC 87 at [559]. Consideration must be given to the nature and complexity of the documents effecting the compromise and the transaction as a whole: A v N at [401]-[407]. While it may be accepted that mental capacity necessarily includes the capacity for decision-making, capacity is not to be determined by reference to the actual reasons for making the decision to enter into the transaction in question or by an assessment of the quality or rationality of that decision: Hanna v Raoul at [53]; Kanjian Holdings No 1 Pty Ltd v Kanjian [2021] NSWSC 839 at [692]; A v N at [445]; Masterman-Lister at [78]-[79]. We consider that the approach taken by the primary judge in her assessment of Ms Rossi’s capacity to enter into the Deed accorded with the legal principles described and we reject the appellant’s contention that the primary judge erred by applying the wrong test.

44    As to the contention that the primary judge erred in her application of that test to the facts of Ms Rossi’s case by understating the complexity of the Deed, it is first necessary to consider the nature of the litigation and the general purport of the terms of the Deed and the overall compromise. Ms Rossi’s proceedings in the County Court concerned a claim for monetary compensation for a psychological injury alleged to have been caused by or to have arisen from her employment with Qantas. There was no dispute that Ms Rossi was suffering from a psychological illness, with the issue in dispute being whether the requisite causal connection with the employment existed. Dr Gill’s further medical reports of 15 September and 10 October 2008 placed Ms Rossi’s claim in severe peril. This was the position which Ms Rossi faced when she attended the settlement conference, which was arranged for the purpose of attempting to achieve a settlement of her claim, on 27 October 2008.

45    The Deed, and the overall settlement, involved the following elements from Ms Rossi’s perspective: (1) Ms Rossi would be paid the amount of $75,000 by Qantas as compensation for her alleged workplace injury; (2) Qantas would pay $40,000 for her legal costs; (3) the proceedings before the County Court would come to an end; (4) Ms Rossi could make no further claim against Qantas in respect of her employment; and (5) the settlement was to be kept confidential and Ms Rossi could not disparage Qantas. There were certain machinery elements required to effect the settlement and avoid tax liability on the settlement sum, including that Ms Rossi’s claim would be repleaded as one for damages at common law and that, while Qantas denied liability, a serious injury certificate would issue. However, we do not consider that these matters formed part of the “general purport” of the settlement beyond perhaps the fact that Ms Rossi would receive the settlement sum clear of tax. These terms, as expressed in the terms of settlement and the Deed, ran to only a few pages.

46    We agree with the primary judge’s conclusion that the Deed, and the compromise in its totality, was not complex. In her appeal submissions, the appellant contended that complexity arose from the explanation which her lawyers should have given her concerning the release in the Deed. The appellant submitted that this hypothetical “optimal” explanation should have encompassed advice about the “various causes of action traded off”, including concerning the capacity to seek uncapped damages under federal anti-discrimination legislation, and that, if such an explanation had been given, Ms Rossi would not have had the capacity to understand it because of its complexity.

47    It is unclear whether this submission formed part of the appellant’s case below. In any event, it is rejected. An explanation of the general purport of the release in the Deed did not, in our view, require advice about the range of hypothetical causes of action which would cease to be available if the Deed were executed. That is particularly the case concerning the claims of discrimination which were brought to the AHRC and then to this Court more than a decade after the events in question. We note that Ms Rossi does appear to have inquired about an alternative claim in negligence, and this was specifically addressed in advice given in the “Your Claim” letter as well as earlier. The explanation of the general purport of the release against which capacity must be measured is that its effect would be that Ms Rossi could not pursue any further claims against Qantas arising from her employment. That is not a complex concept.

48    Capacity to understand a transaction is not dependent upon demonstration that the relevant person actually understood the transaction: A v N at [445]. However, as the appellant accepted, evidence of actual understanding would logically be demonstrative of capacity to understand. The primary judge made a number of findings concerning the state of Ms Rossi’s actual understanding that were not directly challenged in her appeal. These include that:

(a)    From 9 October 2008, Ms Rossi knew that there was to be a settlement conference to take place on 27 October 2008 and understood its purpose: PJ at [250] and [217(2)].

(b)    At the time of the pre-conference meeting on 27 October 2008, Ms Rossi understood that Dr Gill had changed his position concerning the extent to which her impairment was caused by work and the level of her impairment, and further understood Mr McCristal’s advice concerning the impact this would have on her prospects of success: PJ at [254]. Mr Hutchinson also told her she did not have a strong case: PJ at [259]. Ms Rossi took issue with what was conveyed to her about her medical history: PJ at [255]-[256].

(c)    Ms Rossi understood that, at the conference on 27 October 2008, Qantas had made an offer of settlement of $50,000 with no provision for ongoing medical expenses: PJ at [264].

(d)    Immediately after the conference, Ms Rossi exhibited that she was able to process and think about the events of the day: PJ at [272].

(e)    Ms Rossi told Ms Allan after the conference on 27 October 2008 about Dr Gill’s revised position and that she had to decide whether to accept Qantas’ offer: PJ at [273].

(f)    She told Dr Singleton on 28 October 2008 that the offer involved a term which would prevent her from discussing her experiences with Qantas: PJ at [266], [274]. She also told Dr Singleton about the monetary offer, describing it as “pitiful”: PJ at [274]. She demonstrated knowledge by this time that a settlement would require some form of deed or document: PJ at [217(4)].

(g)    The “Your Claim” letter was read out to Ms Rossi on 29 October 2008 and she was taken through it by Mr McCristal: PJ at [277].

(h)    The Deed and the terms of settlement were read out to Ms Rossi: PJ at [277] and [282]. Ms Rossi recognised that the terms of settlement (which reflected Qantas’ revised offer) were different to the terms described in the “Your Claim” letter: PJ at [281].

(i)    In respect of the confidentiality term, Ms Rossi raised that she wanted to be able to discuss the settlement with her family: PJ at [284].

(j)    Mr Hutchinson advised Ms Rossi to accept the revised offer, and both he and Mr McCristal said her prospects of success were not good: PJ at [285]. Ms Rossi knew there were difficulties with her claim which had been exacerbated by Dr Gill’s revised position: PJ at [285]. While Ms Rossi disagreed with this, she accepted that Mr Hutchinson and Mr McCristal had conveyed their views as to prospects of success to her: PJ at [284]-[285].

(k)    Ms Rossi conveyed to Mr Hutchinson a willingness to accept the terms of settlement and enter into the Deed, despite her obvious disappointment in that outcome: PJ at [286].

(l)    When she signed the Deed, Ms Rossi took into account the consequences if she did not sign, including that there might be costs consequences: PJ at [284].

(m)    Ms Rossi did not say in her evidence that she did not understand the Deed: PJ at [286].

49    Taking into account that the Deed and the settlement involved no particular or unusual complexity, we consider that the above findings amply support the inference that Ms Rossi had the capacity to understand the settlement process she was engaging in and the general purport of the Deed and the settlement. The primary judge did not err in drawing that inference. For the above reasons, grounds 1 and 3 are rejected.

I.    GROUND 2

50    By ground 2 of her appeal, the appellant contends that the primary judge erred in law by excluding from consideration or failing properly to consider evidence of events surrounding the signing of the Deed. The appellant refers to Owners of Strata Plan No 23007 v Cross [2006] FCA 900 at [68] and Scott v Scott [2012] NSWSC 1541 at [200] as authorities for the proposition that incapacity at the time of entry into a transaction may be inferred from evidence as to the relevant person’s prior and subsequent mental condition.

51    As to the events prior to the signing of the Deed said to be relevant to her mental state at the time of signing the Deed, the appellant relied in her written submissions upon the following:

    she felt paralysed, overwhelmed and fearful of the threats Mr McCristal had made the day before;

    she was unprepared for the settlement process;

    she was unable to discuss her matter with Mr McCristal prior to the settlement conference;

    the impact of Mr McCristal’s conduct during the settlement conference made her feel alienated and left out, and reminded her of how she had been treated by Qantas; and

    she was shocked by the change in Dr Gill’s opinion concerning the causation of her condition, about which she had not previously been informed.

52    However, in her oral submissions, the appellant moved away from the above matters and focused on her depressive illness as she experienced it in the period leading up to the settlement conference.

53    The appellant also relies on the following events subsequent to the signing of the Deed as relevant to her mental state as at the signing of the Deed:

(1)    Her refusal of the settlement money and the exchange of documents necessary to give effect to the settlement under the Deed.

(2)    The concern held by Dr Singleton as to Ms Rossi’s mental state following their telephone conversation on 29 October 2008 which led Dr Singleton the following day to arrange for Ms Rossi’s admission to a psychiatric hospital.

(3)    Ms Rossi’s alleged statement to Mr McCristal on 1 December 2008 that she had not been in a fit state to agree to the Deed.

54    There is no dispute about the proposition of law upon which this appeal ground proceeds. However, there was no error of law by the primary judge as contended by the appellant. As to the matters prior to the signing of the Deed relied upon in the written submissions, none of them (with the possible exception of the references to Ms Rossi being “paralysed” and “overwhelmed”) are relevant to the test for capacity. Further, a number of the above matters have as their premise aspects of Ms Rossi’s case below that Mr McCristal threatened and improperly pressured her during the period 27-29 October 2008 leading up to her signing the Deed. That aspect of Ms Rossi’s case was rejected by the primary judge. As to Ms Rossi’s mental health leading up to the settlement conference, the primary judge accepted (PJ at [394]) that she was suffering from a major depressive disorder at the time but, for the reasons set out in PJ at [395]-[415], was not persuaded that this meant that Ms Rossi lacked capacity to enter into the Deed. The primary judge did not exclude this matter from consideration.

55    Each of the post-Deed events referred to by the appellant was considered by the primary judge. These events are narrated in PJ at [198]-[205] and are considered at [206] and [290]-[292]. The key conclusion made by the primary judge was, in substance, that because Ms Rossi’s upset and anger following the end of the settlement process may have increased upon continued reflection upon the events of 29 October 2008, these post-Deed events were not probative of Ms Rossi’s capacity at the time she entered into the Deed. The appellant’s complaint that the primary judge gave insufficient weight to these matters is not demonstrative of any error on the part of the primary judge in declining to draw an inference from these events about Ms Rossi’s capacity on 29 October 2008.

56    As the respondent points out, ground 2 is at odds with the way the appellant advanced her case below. At PJ at [68], the primary judge noted that Ms Rossi’s case was that she lacked capacity in the period between 1 pm to 2 pm on 29 October 2008 when she signed the Deed, that it was not her case that she lacked capacity at all relevant times but at that particular time, and that her prior conduct was not relevant to the assessment of her capacity. The primary judge rejected this narrow approach at [73] and said:

I do not consider I am limited to considering evidence as to Ms Rossi's competence at the precise moment (or hour) of the signing of the Deed. Whilst any such evidence is important, the authorities indicate that the court frequently looks to the events surrounding the execution of a document in assessing whether capacity might be inferred: Scott v Scott [2012] NSWSC 1541 at [197]-[200].

57    This demonstrates that the primary judge did not make the error of law for which the appellant contends.

58    Paragraphs (c), (d) and (e) of ground 2 were not the subject of any elaboration in the appellant’s written submissions. For completeness, we deal with them briefly. As to (c), we consider that the primary judge was correct in treating her findings as to Ms Rossi’s presentation and level of engagement at the conference on 27 October 2008 as relevant to her capacity at the time of signing the Deed two days later. As to (d), the evidence concerning Ms Rossi’s suicidal ideation, and Dr Singleton’s perspective on this, was the subject of consideration and findings by the primary judge: PJ at [169]-[171], [198]-[199], [275], [305] and [314]-[317]. Finally, as to (e), the primary judge did not “fail to give weight” to Ms Rossi’s evidence alleging that she has been placed under duress and undue pressure by Mr McCristal and Mr Hutchinson at the time of entering the Deed. While the primary judge regarded this as not centrally relevant to the question of Ms Rossi’s evidence, she also declined to accept this evidence: PJ at [287].

59    Ground 2 is rejected.

J.    GROUND 4

60    As formulated in the amended notice of appeal, this ground challenges generally the adverse findings of credit made against Ms Rossi. However, the submissions made in support of this ground devolved into a piecemeal challenge to three particular instances in the primary judgment where Ms Rossi’s evidence was not accepted. These findings are said to have been unreasonable and without a logical basis.

61    This ground is, at the outset, fundamentally misconceived because it pays no regard to the primary judge’s advantage in respect of factual issues involving witness credibility. In effect, we are invited to determine for ourselves contested issues of primary fact requiring assessments of credit. This is contrary to the applicable appeal principles earlier set out. Further, as we explain below, the appellant cherry-picks particular findings to be the subject of challenge without regard to their proper context in the matrix of the primary judge’s reasoning.

62    The first finding the subject of challenge is that made by the primary judge at [218] concerning Ms Rossi’s fourth affidavit of 22 October 2020. In relation to new assertions contained in this affidavit concerning the events of 27-29 October 2008 which had not previously been made by Ms Rossi in her earlier affidavits, the primary judge found:

In light of the concerns I have raised above as to the reliability of Ms Rossi's evidence, I have come to the view that Ms Rossi has exaggerated aspects of her evidence and that many of these late additions are unreliable.

63    The appellant submits that it was unreasonable for the primary judge to disbelieve Ms Rossi’s own description of her symptoms, which was supported by the medical evidence of her treating practitioners, “solely on the basis of the primary judge’s concerns about the reliability of other evidence”. The appellant also submits that neither Mr McCristal nor Mr Hutchinson was in a position to contradict her evidence as to her symptoms, since her psychological and cognitive processes may not have been externally obvious and their recollection was either not clear or mistaken. Finally, it is submitted that the additional details provided in Ms Rossi’s affidavit of 22 October 2020 “should not be attributed to unreliability but rather to the potential impact of trauma on the Appellant’s recall or perception of events”.

64    The impugned finding forms part of the reasoning process at [216]-[222] whereby the primary judge explained her conclusion that aspects of Ms Rossi’s evidence were unreliable or exaggerated. That analysis starts (PJ at [216]) with a general conclusion about Ms Rossi’s presentation as a witness and is then followed (PJ at [217]) with specific examples of instances where Ms Rossi’s evidence was improbable and inconsistent with contemporaneous documents and other non-contentious evidence. Taken in that context, there is nothing illogical or unreasonable in the primary judge having regard to these matters in assessing that the emergence of new factual assertions in Ms Rossi’s fourth affidavit was indicative of exaggeration and unreliability. Further, the appellant’s submission fails to take into account the further reasoning (PJ at [219]-[221]) about inconsistencies in Ms Rossi’s evidence concerning her state of recollection of the events of 27-29 October 2008.

65    The primary judgment sets out detailed findings about the contested events of 27-29 October 2008 by reference to the evidence of Ms Rossi, Mr McCristal, Mr Hutchinson, Ms Allan and Dr Singleton. The primary judge’s conclusions did not involve a wholesale rejection of every aspect of Ms Rossi’s evidence about her mental and emotional state since, as we explain later in connection with ground 9, some aspects of Ms Rossi’s evidence about this were accepted. Further, as we also explain later, the primary judge’s conclusions were not solely based on her adverse assessment of Ms Rossi’s credibility, but also on positive assessments of the credibility of Mr McCristal and Mr Hutchinson respectively (PJ at [230] and [231]). The appellant’s submission does not properly engage with the detail and nuance of the primary judge’s analysis in this respect in a way which is demonstrative of error. The proposition that the new factual assertions in Ms Rossi’s affidavit of 22 October 2020 are to be attributed to “the potential impact of trauma” is not supported by any reference to the medical evidence and is speculative.

66    The appellant secondly challenges as unreasonable the inference said to have been drawn by the primary judge at [231] that the “imperviousness” of Mr McCristal and Mr Hutchinson to Ms Rossi’s psychological state meant that it was unlikely that she was exhibiting signs of incapacity. This was said to have been the foundation for the conclusion (PJ at [410]) that there were no external signs that Ms Rossi’s capacity changed markedly at the time she signed the Deed. The appellant submits that Dr Singleton’s evidence of the distress exhibited by Ms Rossi in their telephone call on the evening of 29 October 2028, which led to Dr Singleton seeking to arrange Ms Rossi’s admission into a psychiatric hospital, was in apparent contradiction to this inference.

67    The factual premise of this submission, namely that Mr McCristal and Mr Hutchinson were “impervious” to Ms Rossi’s psychological state, is unfounded. The primary judge did not find that Mr McCristal or Mr Hutchinson failed to observe any behaviour on the part of Ms Rossi relevant to capacity which was outwardly manifested at the settlement conference. Rather, she found (PJ at [258] and [369]) that there was in fact no obvious outward sign that Ms Rossi was undergoing a concerning level of distress or seemed overwhelmed and, at [407], that Ms Rossi did not outwardly manifest to Mr McCristal or Mr Hutchinson any difficulty in communicating or dealing with or understanding the compromise. The acceptance of Mr McCristal’s and Mr Hutchinson’s evidence in this respect was based on credit findings in their favour: PJ at [230] and [231] respectively. It was on this basis that the finding at [410] was made. The primary judge did not draw an inference in the way suggested by the appellant.

68    As to Dr Singleton’s evidence about Ms Rossi’s level of distress in their telephone call, this was considered in detail: PJ at [314]-[315]. The appellant’s submissions proceed on the assumption that feelings of distress on the part of Ms Rossi are to be equated with incapacity to enter into the Deed. However, while the primary judge accepted that Ms Rossi felt distress during and after the settlement conference on 29 October 2008, she also found (PJ at [315]) that Dr Singleton’s note of the telephone conversation did not suggest that Ms Rossi said anything about any regret or lack of understanding about the settlement or any conduct by way of duress or pressure. Further, the primary judge found at [316] that Dr Singleton herself did not at that time hold a concern about Ms Rossi’s capacity to retain and absorb information associated with the Deed (see also at [404]). These findings are not addressed by the appellant and dispose of the evidentiary contradiction alleged by the appellant.

69    Finally, the appellant challenges the primary judge’s rejection (PJ at [269]) of Ms Rossi’s affidavit evidence, set out at [154], that she said to Mr McCristal at the settlement conference on 27 October 2008: “I am not able to do anything, I can’t sign anything. I have to see my doctor.” The appellant submits that her version of events “would appear more probable” since it aligns with the subsequent adjournment of the conference later that day and the fact that Ms Rossi did subsequently see Dr Singleton, who noted that she was distressed and had increasing suicidal ideation.

70    The primary judge set out her reasons for the rejection of this evidence at [269]. Those reasons included that Ms Rossi had revised her own evidence as to this very conversation in a manner which undermined the reliability of her memory, and that Mr McCristal’s evidence (PJ at [157]) that he would have cancelled or stopped the meeting if Ms Rossi had asked to see a doctor was inherently credible and should be accepted. This reasoning is not addressed by the appellant. No error has been demonstrated.

71    Ground 4 is rejected.

K.    GROUND 5

72    By ground 5, the appellant contends that the primary judge erred in admitting the expert report of Dr Lee. The primary basis of this ground is that the report did not comply with s 79 of the Evidence Act 1995 (Cth) (Evidence Act) in that:

(1)    the report did not identify how his findings were made based on his training, study or experience;

(2)    the report did not identify the facts and matters that he relied upon;

(3)    Dr Lee’s opinions were open to a reading that indicated his personal view of Ms Rossi;

(4)    the report included assumptions not properly made; and

(5)    Dr Lee expressed his interpretation of facts that he was asked to assume were correct, rather than providing an expert opinion on such facts.

73    The appellant also contends that Dr Lee’s report did not comply with r 23.13(1)(e)-(f) of the Federal Court Rules 2011 (Cth) or the Federal Court Expert Evidence Practice Note, and that the format of the report and its presentation were confusing and its reasoning process was opaque.

74    In the above respects, the appellant repeats and relies upon submissions that were advanced below in objection to the admission of the report. The primary judge dealt with the objection, and gave reasons for its rejection, at [388]-[393]. The appellant’s submissions do not engage with this reasoning but, in effect, simply invite the question of the admissibility of Dr Lee’s report to be re-decided in the appeal.

75    Insofar as the appellant relies on s 79 of the Evidence Act, it may be accepted that the correctness standard applies to appellate review of a decision concerning the admission of opinion evidence under the section. By application of the reasoning in Moore at [16]-[18] and R v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 at [61], there can only be one correct answer to whether the conditions for the operation of the exception to the opinion rule in s 79 apply, notwithstanding that the provision requires the making of an evaluative judgment.

76    Section 79(1) establishes two criteria for admissibility: first, the witness who gives the evidence must have specialised knowledge based on the person’s training, study or experience, and second, the opinion expressed in evidence by the witness must wholly or substantially be based on that knowledge. But, as stated in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 at [37], the requirements in s 79(1) may be met “quickly and easily” in many if not most cases:

That a specialist medical practitioner expressing a diagnostic opinion in his or her relevant field of specialisation is applying “specialised knowledge” based on his or her “training, study or experience”, being an opinion “wholly or substantially based” on that “specialised knowledge”, will require little explicit articulation or amplification once the witness has described his or her qualifications and experience, and has identified the subject matter about which the opinion is proffered.

77    Dr Lee’s report sets out in detail his qualifications and experience as a medical practitioner and forensic psychiatrist and explains why he considers his training, study or experience allows him to give an opinion about whether a person has the medical capacity to engage in certain conduct or to understand certain matters. He identifies in his report that he had been asked whether he was able to give an opinion as to whether Ms Rossi was able to understand the effect or general nature of the Deed at the time of its entry if its effect or general nature had been explained to her and, if so, to give his opinion. Because the opinion expressed by Dr Lee concerned Ms Rossi’s mental capacity, including the effect of her depressive illness on her capacity to enter into the Deed, we have no difficulty in concluding that it was at least substantially based on Dr Lee’s specialised knowledge. Dr Lee’s report was therefore admissible under s 79.

78    Rules 23.13(e) and (f) respectively require that an expert report set out separately each of the factual findings or assumptions on which the expert’s opinion is based, and set out each of the expert’s opinions separately from those factual findings or assumptions. For the reasons set out in PJ at [388]-[392], Dr Lee’s report complied with these rules. In any event, as the primary judge noted at PJ at [296], non-compliance with r 23.13 does not automatically make expert evidence inadmissible. The Court’s Expert Evidence Practice Note does not establish any additional requirements as to the admissibility of expert evidence. The other matters raised by the appellant go to the form of Dr Lee’s report rather than its admissibility.

79    The primary judge did not err in admitting Dr Lee’s report. Ground 5 is rejected.

L.    GROUNDS 6 AND 7

80    Grounds 6 and 7 allege error in respect of the primary judge’s treatment of the medical evidence adduced by the appellant below.

81    It is convenient to address ground 7 first, which concerns the evidence of Dr Parmegiani. The appellant contends that the primary judge erred at [376] by relying on Dr Parmegiani’s acceptance in cross examination that:

… in general terms Ms Rossi was able to understand the general nature and effect of the Deed; and that she was generally able to understand any advice given by her lawyers regarding the nature of the Deed and its purpose, including its possible consequences and especially the risks in terms of legal costs.

82    The appellant submits that reliance on this aspect of Dr Parmegiani’s evidence was misplaced because Dr Parmegiani had maintained a distinction between mere awareness of events and cognitive processing of information, access to expressive language and sufficient psychological strength to do other than acquiesce in signing the document. Dr Parmegiani’s conception of what constituted understanding of the general nature and effect of the Deed, it was submitted, was explained by him as being merely that Ms Rossi was “alert, conscious and able to comprehend language”, but “mere sentience” was not enough to demonstrate the requisite mental capacity.

83    We do not accept that Dr Parmegiani’s evidence concerning Ms Rossi’s capacity to understand the Deed was confined in the way suggested by the appellant. The key aspects of the medico-legal reports prepared by Dr Parmegiani are extracted in the primary judgment at [358]-[361]. It is apparent from those extracts that Dr Parmegiani expressed a consistent position that Ms Rossi was able to understand the general nature and effect of the Deed and the advice given to her by her lawyers regarding the nature of the Deed and its purpose, including its possible consequences and the risks in terms of legal costs. He also recorded that, at his clinical assessment of her in October 2020, Ms Rossi was able to clearly recall the details of her meetings with her lawyers and the matters they discussed with her. Dr Parmegiani adhered to this position in cross-examination (PJ at [364]). This capacity to understand the Deed so described constitutes significantly more than, as the appellant described it, “mere sentience”.

84    On a fair reading of his evidence, the true distinction which Dr Parmegiani sought to make was between, on the one hand, Ms Rossi’s capacity to understand the nature and effect of the Deed and, on the other, the quality of Ms Rossi’s capacity to make reasoned decisions and to give instructions to her lawyers. The reference to Ms Rossi being “alert, conscious and able to comprehend language” appears in Dr Parmegiani’s third report of 4 November 2020 (extracted at [360] of the primary judgment) in the context of his explanation that she was not affected by any impairment of thinking of the type usually found in psychotic conditions. The impairment lay instead, Dr Parmegiani opined, in respect of her incapacity to carefully consider the matters at hand or to make calm and well-reasoned judgments about them.

85    As discussed by the primary judge at [365]-[374], Dr Parmegiani’s evidence suffered from the difficulty that he was substantially dependent upon Ms Rossi’s account of the events of 27-29 October 2008, including her evidence concerning the conduct of her lawyers, in reaching this conclusion. Dr Parmegiani’s first and second reports of 21 October 2020 and 27 October 2020 respectively make it clear that he assumed the correctness of Ms Rossi’s description of events in reaching his stated conclusions. It is equally clear that he placed weight on Ms Rossi’s account. For example, when describing Ms Rossi’s capacity to participate in the decision-making process “in the circumstances… described [in her affidavit]”, Dr Parmegiani said in his first report:

It is also my opinion that the disabilities interfered with her ability to express an intention one way or another as to the terms of the deed she signed, as she felt under duress and pressure to comply with the instructions. It is my opinion that the disabilities combined with the treatment described by Ms Rossi (the pressure to sign the deed) compelled her to acquiesce to the demands of her lawyer that she sign the deed.

86    Similarly, he concluded in his second report:

… Ms Rossi clearly recalled feeling overwhelmed by the occasion, and having in her own mind no choice but to sign the deed when placed under pressure to do so. In many ways, she described a situation not dissimilar to her previous experiences at work, where she had felt belittled and harassed by people in position of power, and had been unable to assert herself.

87    In cross-examination, Dr Parmegiani confirmed the reliance he had placed on Ms Rossi’s account of events in the following exchange:

Now, it’s the case, isn’t it, as well, that’s it’s your contention that she was able to understand – that she was able to understand the general nature, in effect, of the deed, but that she felt under duress to comply with instructions? That’s what I think is the distinction you’re creating?---Yes.

Yes?---Yes, I .....

And am I right in understanding that it’s because of what she told you about the circumstances in which she was the subject of duress to comply with instructions?---That would form the good part of that opinion, yes.

88    This evidence demonstrates clearly enough that the foundation of Dr Parmegiani’s opinion that Ms Rossi lacked the necessary psychological strength to do other than acquiesce in signing the document (as he characterised it in his evidence in re-examination) was her own account of being subject to duress and undue pressure on the part of Mr McCristal and Mr Hutchinson during the settlement conference. However, as the primary judge noted at [373], she did not accept that, objectively, Mr McCristal or Mr Hutchinson had engaged in conduct that might constitute duress or undue pressure to sign the Deed, and that Ms Rossi’s evidence as to events at the settlement conference was, at least in part, unreliable. Because the relevance and weight to be given to any expert opinion evidence is dependent, to a large extent, on the correctness of the assumed facts (Australian Competition and Consumer Commission (ACCC) v Australia and New Zealand Banking Group Ltd (2015) 236 FCR 78; [2015] FCAFC 103 at [228]), the primary judge’s findings concerning Ms Rossi’s evidence necessarily vitiated, or at least significantly diminished, the evidentiary value of Dr Parmegiani’s opinion.

89    Insofar as Dr Parmegiani expressed the view that Ms Rossi had been unable to give clear instructions (or, to use the appellant’s expression, have “access to expressive language”) that opinion was similarly founded on Ms Rossi’s account that, during the settlement conference, her words came out “all jumbled” or as “gibberish” to the point that her lawyers could not understand her: PJ at [362(6)]. However, the primary judge at [369] did not accept Ms Rossi’s evidence in this respect and found at [370] and elsewhere that Ms Rossi had in fact been able to articulate to her lawyers particular issues which had been of concern to her.

90    Furthermore, as adverted to by the primary judge at [364], Dr Parmegiani’s conclusions about Ms Rossi’s decision-making ability were adjectivally qualified in a way which bore more upon the quality of her decision-making rather than her capacity, as a function of understanding, to make a decision about entering into the Deed and to give effect to that by way of instructions to her lawyers. In his third report of 4 November 2020, Dr Parmegiani stated the opinion that, due to Ms Rossi’s mood disorder, it was “impossible for her to carefully consider the matters at hand or to make calm and well-reasoned judgments about them” (emphasis added.) As the primary judge noted, Dr Parmegiani was cross examined about this as follows:

Am I right in understanding, with respect to that, that you’re not saying that it was impossible for her to consider the matters at hand, it was just it was impossible for her to carefully consider the matters at hand?---Yes, I agree with that.

And, also, I think am I right in understanding that, again, you’re not saying it was impossible for her to make judgements about the matters at hand, but, rather, reasoned ones, in your view?---Yes, I will agree with that.

91    The appellant’s submissions do not address these aspects of the primary judge’s reasoning, which caused her to conclude at [374] that Dr Parmegiani’s opinion about Ms Rossi’s subjective state of mind during the settlement conference should not be afforded real weight. We agree with the primary judge’s conclusion in this respect, the more so because, as discussed at [40] above, the perceived quality or rationality of a litigant’s actual decision-making process is not determinative of their capacity to understand a compromise of proceedings entered into. What was left of Dr Parmegiani’s evidence was his opinion that Ms Rossi was able to understand the general nature and effect of the Deed – an opinion which accorded with that of Dr Lee. There was no error in the primary judge’s acceptance and reliance on this aspect of Dr Parmegiani’s evidence.

92    As to ground 6, there is a degree of discordance between the ground as pleaded in the amended notice of appeal and as articulated in the appellant’s submissions. As pleaded, ground 6 complains that the trial judge erroneously limited her consideration of the medical evidence by excluding the evidence of Ms Allan and Dr Singleton. However, the appellant’s submissions additionally or alternatively contend that the primary judge drew an inappropriate inference from the notes of Ms Allan and Dr Singleton, being that their failure to mention or make any assessment in relation to Ms Rossi’s mental capacity meant that she was not displaying symptoms which cast doubt on her decision-making capacity.

93    Neither contention has merit. The primary judge plainly did not exclude or ignore the evidence of Ms Allan or Dr Singleton. The primary judge narrated and considered the evidence of Ms Allan in detail at [318]-[355]. In respect of what was characterised as Ms Allan’s “lay evidence”, consisting of her description in her affidavits and her notes of her interactions with Ms Rossi as her treating psychologist, the primary judge accepted at [324] that the notes were admissible as evidence of what Ms Rossi told Ms Allan during their consultations and of opinions held by Ms Allan at relevant times. However, the primary judge found at [336]-[341] that Ms Allan’s evidence concerning her interactions with Ms Rossi was not objective or independent and highly dependent on Ms Rossi’s self-reporting and was, accordingly, to be treated with caution. As to Ms Allan’s expert evidence, consisting of two reports stating her opinion concerning Ms Rossi’s mental state or capacity as at 29 October 2008, the primary judge noted at [344]-[345] Ms Rossi’s concession that she did not rely on Ms Allan’s evidence about this and said that in any event she would prefer the psychiatric evidence as to capacity. The primary judge determined at [347] that she would give no weight to Ms Allan’s reports for reasons set out at [348]-[354].

94    Dr Singleton’s evidence was likewise analysed in detail at [298]-[317] of the primary judgment. The primary judge noted at [312] that Ms Rossi accepted that Dr Parmegiani’s evidence was to be preferred over Dr Singleton’s and that Dr Singleton referred to Ms Rossi’s capacity as being impaired. The primary judge at [317] accepted Dr Singleton’s evidence that Ms Rossi presented as depressed and unwell at the time of the settlement conference and found that there may have been some limited impairment of Ms Rossi’s capacity as a result of the state of her mental health, but otherwise expressed reservations at [315]-[316] that Dr Singleton’s evidence went beyond what her contemporaneous notes stated and that her overarching concern about Ms Rossi’s suicidal ideation did not necessarily denote incapacity.

95    The appellant’s submissions do not engage with this analysis. Rather, the appellant simply asserts that the primary judge drew an inference, based on findings at [311] in respect of Dr Singleton and at [332] in respect of Ms Allan to the effect that they failed to mention or make a contemporaneous assessment about Ms Rossi’s mental capacity, that Ms Rossi was not displaying symptoms casting doubt on her decision-making capacity, and that this inference was in error. The appellant submits that nothing can be made of Dr Singleton’s or Ms Allan’s failure to deal with this “legal issue” because they were medical professionals rather than lawyers.

96    The primary judge did not draw the inference asserted. At [311] and [332], the primary judge simply recorded that Dr Singleton and Ms Allan had not made any assessment of Ms Rossi’s mental capacity contemporaneously with the settlement conference. That was a relevant matter since the evidence of both these witnesses was adduced by the appellant below on the basis that it was relevant to the question of capacity. As earlier stated, the primary judge considered the evidence of Dr Singleton and Ms Allan as to the symptoms displayed by Ms Rossi at the time of the settlement conference, indicated the extent to which she accepted that evidence, and gave reasons why this evidence was not demonstrative of incapacity. Again, the appellant’s submissions do not engage with this analysis.

97    For the above reasons, grounds 6 and 7 are rejected.

M.    GROUND 8

98    The appellant contends in relation to this appeal ground that the primary judge erred by drawing inferences from Ms Allan’s contemporaneous notes of her consultations with Ms Rossi and regarding Ms Rossi’s mental capacity at the time of signing the Deed which were “unsafe and should not have been drawn”. The inferences the subject of this appeal ground concern Ms Rossi’s degree of understanding of the settlement process, and the Deed, and were drawn by the primary judge from Ms Allan’s notes of her telephone discussion with Ms Rossi on the evening of 27 October 2008 about what Ms Rossi had told her. The appellant submits that the primary judge “effectively filled in the gaps” of Ms Allan’s relatively brief notes and the findings made by the primary judge concerning Ms Rossi’s state of understanding considerably overstated what could reliably be drawn from those notes.

99    Ms Allan’s notes were placed into evidence below by the appellant. The notes constituted evidence of a contemporaneous representation made by Ms Rossi concerning, relevantly, her knowledge or state of mind, and were admissible on that basis at least under s 66A of the Evidence Act. The agreed limitation placed by the trial judge upon Ms Allan’s notes pursuant to s 136 of the Evidence Act, namely that they could not be used to prove the underlying facts asserted by Ms Rossi (PJ at [323]-[324]), did not limit their use as contemporaneous evidence of Ms Rossi’s knowledge and state of mind.

100    The content of the notes concerning the telephone conversation on 27 October 2008 are set out in PJ at [166]. They state:

Will try to call John McC in the morning.    5%    12%

Will talk with him in the afternoon - decide whether to accept the offer.

Wednesday: accept or not.

Wanting to pursue Louise Buchanan's notes - original.

Feeling that her mental health history has been discriminated against / a pursuit of the validity /impact of workplace practice.

101    The primary judge inferred, at [267], [330], [400] and [402], that Ms Allan’s notes indicated that Ms Rossi knew and understood: the purpose of the settlement meeting, namely to mediate and settle her dispute with Qantas prior to trial; that Dr Gill had revised his percentage assessment of the level of her impairment caused by work; that an offer had been made that she needed to decide whether to accept; and that she would need to come back to the mediation about this on (Wednesday) 29 October 2008. The primary judge also inferred that the reference to “pursu[ing] Louise Buchanan’s notes” indicated that Ms Rossi had precise information that Dr Gill’s revised report disclosed that he had not been given the notes from her earlier consultations with Ms Buchanan, a psychologist to whom Ms Rossi had been referred under the Qantas Employee Assistance Program.

102    Those inferences appear to us to be inescapable. The reference to deciding “whether to accept the offer” is, logically, only referable to the offer made by the respondent at the settlement conference earlier that day and the need for Ms Rossi to respond to it. The references to “5%” and “12%” do not explicitly mention Dr Gill’s report but, again, they can only be reasonably understood as referencing Dr Gill’s revised impairment estimates contained in his further report of 15 September 2008, about which Ms Rossi had been advised prior to the commencement of the settlement conference that day. The appellant proffered no alternative explanation as to the meaning of these references in the notes, nor did the appellant explain why the contemporaneous representations made by Ms Rossi about these matters were not demonstrative of a state of knowledge and understanding about the matters. The primary judge did not err in drawing these inferences, and ground 8 is therefore rejected.

N.    GROUND 9

103    The appellant submits in respect of ground 9 that the primary judge erred by relying upon the “failure” of either Mr McCristal or Mr Hutchinson to observe the Appellant being distressed or appearing overwhelmed to conclude that Ms Rossi did not lack the requisite capacity, in that:

(1)    neither Mr McCristal nor Mr Hutchinson claimed to have an exact recollection of the events at the settlement conference;

(2)    they did not have reason to retain particulars of the events, in contrast to their significance for Ms Rossi;

(3)    the evidence of Dr Singleton was that Ms Rossi was experiencing increasing suicidal ideation; and

(4)    the primary judge should have, but did not, considered the “financial incentive for the legal practitioners to fail to act on signs of lack of capacity and the reputational incentive to now deny that any such signs existed”.

104    As with ground 4 (see [57] to [68] above), the implicit factual premise of this appeal ground is unfounded. The primary judge did not find that Mr McCristal or Mr Hutchinson failed to observe any behaviour on the part of Ms Rossi relevant to capacity; rather, she found that no such behaviour manifested itself at the settlement conference. In any event, the primary judge accepted at [401], [406] and [408] that, at various points during the settlement conference, Ms Rossi was in fact feeling upset, anxious and angry and had a sense of distress and being under a degree of pressure. The primary judge also appears to have accepted at [315] that, on 28 October 2008, Ms Rossi conveyed suicidal ideation to Dr Singleton. However, the primary judge did not regard these matters as dispositive of the issue of capacity (see PJ at [315] and [408]) and placed primary weight on Ms Rossi’s level of engagement in the settlement process, the understanding she displayed of the issues involved, and the expert evidence of Dr Lee and Dr Parmegiani concerning Ms Rossi’s capacity to understand the Deed. The appellant thus mischaracterises the primary judge’s reasons in suggesting that her conclusion as to Ms Rossi’s capacity was reliant upon her findings concerning Mr McCristal’s and Mr Hutchinson’s observations about Ms Rossi’s behaviour.

105    Ground 9 is therefore rejected.

O.    CONCLUSION

106    For the foregoing reasons, the appeal is dismissed.

Associate:

Dated:    13 November 2024