FEDERAL COURT OF AUSTRALIA

Seidler v University of New South Wales [2011] FCA 830

THE COURT ORDERS THAT:

1.    Judgment be entered for the Respondents pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth).

2.    The Applicant in the proceeding, Ms Kathryn Seidler, is to pay the costs of the Respondents.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    In 2005 the Applicant in the present proceeding, Ms Kathryn Seidler, enrolled in an honours programme at the University of New South Wales. Also in that year she was employed by the Australian Graduate School of Management as a Research Assistant on a casual basis. She received her last payment of wages in May 2005 and her employment was terminated in December 2005.

2    Events which she said occurred during that short period of time have prompted complaints to the Human Rights and Equal Opportunity Commission, later known as the Australian Human Rights Commission (“the Commission”). One complaint was made in October 2006. That complaint was terminated in January 2008 and was the subject of an unsuccessful application made to the Federal Magistrates Court of Australia: Seidler v University of New South Wales [2010] FMCA 887. There has been no appeal from that decision. A second complaint was made in October 2010 and that complaint was terminated in February 2011.

3    There has also been litigation in the District Court of New South Wales. A Deed of Release was entered into on 9 February 2009 and the District Court proceeding was then discontinued.

4    Two proceedings were commenced in this Court. One has been resolved by Cowdroy J: Seidler v University of New South Wales [2011] FCA 640. As was there explained, “the basis of the respondents’ motion arises from a Deed of Release signed by the relevant parties … and a decision of the Federal Magistrates Court of Australia”: [2011] FCA 640 at [2]. The other proceeding is the one now before the Court as presently constituted.

5    The present proceeding came before Jacobson J on 16 June 2011 when His Honour gave directions for the filing by Ms Seidler of any Notice of Motion seeking leave to amend her existing Application and/or Statement of Claim on or before 27 June 2011. His Honour also gave directions for the filing by the Respondents of any Notice of Motion “seeking summary disposal on or before 8 July 2011”. Any Motions were to be returnable at 9.30 am on 12 July 2011.

6    On 29 June 2011, the Respondents filed a Notice of Motion seeking orders pursuant to:

    s 31A(2) of the Federal Court of Australia Act 1976 (Cth); or

    Order 20 r 5(1)(a) and/or (b) of the Federal Court Rules; or

    Order 11 r 16(a), (b) and/or (c) of the Federal Court Rules.

An order for costs is also sought together with “any other order” that is deemed appropriate. The differences between an application for summary judgment as opposed to an order that a pleading be struck out as outlined by Finkelstein J in Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920, 252 ALR 41 (see also: Windsor v Sydney Medical Service Co-Operative Ltd (No 2) [2009] FCA 704 at [12] per Edmonds J) assume no present relevance. Nor does the present proceeding occasion any necessity to consider the principles to be applied when invoking s 31A. Those principles have already been discussed by Cowdroy J.

7    When the proceeding was called at 9:30 am on 12 July 2011 for the hearing of the Respondents’ Motion, Ms Seidler failed to appear. She had, however, advised officers in the Registry of the Court that she was running late. She appeared shortly thereafter and then said that an application for leave to appeal from the decision of Cowdroy J was listed for hearing on 15 July 2011. The differences between the proceeding resolved by His Honour and the one presently before the Court was pursued with a view to determining whether the Respondents’ Motion should be adjourned until after the application for leave to appeal.

8    It emerged that the two proceedings were substantially the same – if not identical. But Ms Seidler sought an opportunity to amend her existing Statement of Claim. The subject matter of the amendment was identified, albeit not with any great precision, but in sufficiently clear terms to understand the facts sought to be canvassed. Without any disrespect to Ms Seidler, the case she sought to advance was not as clearly articulated as would have been the case had she had legal representation. But she appeared unrepresented. In such circumstances, an attempt was made to assist in the formulation of the case she sought to advance without unduly prejudicing the case being advanced by the Respondents: Vaeula v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 147 at [59] to [61] per Beaumont, Conti and Crennan JJ. At times, treading that path was not easy.

9    With the concurrence of the parties, the course pursued was to consider whether there was any utility in granting leave to amend at the same time as the hearing of the Respondents’ Motion. The factual and legal issues were within a narrow compass and it was indicated that a judgment could be given within a comparatively short period of time. Depending on the decision to be reached, any application for leave to appeal from the present decision could then be heard together with the application for leave to appeal from the decision of Cowdroy J. The Respondents consented to an adjournment of the application for leave to appeal from His Honour’s decision to facilitate this course.

10    It is concluded that leave to amend should be refused and that judgment should be entered in favour of the Respondents.

11    At the outset of the hearing on 12 July 2011, Ms Seidler also sought to file in Court a Notice of Motion seeking, in part, that summary judgment be entered in her favour. The resolution of the Respondents’ Motion and her own application for leave to amend dictate the failure of any relief of the kind there claimed.

The Differences Between the Two Proceedings

12    The Application and Statement of Claim as were the subject of the decision of Cowdroy J were in substantially identical terms to the one now before the Court.

13    Insofar as the present Application is concerned, the differences between that Application and that considered by Cowdroy J were that the present Application included:

(i)    a statement that “This is an application under s 46PO or 46PP of the Australian Human Rights Commission Act 1986”; and

(ii)    a statement that it was “An Application under … the Fair Work Act 2009”.

Reliance upon the Fair Work Act 2009 (Cth) was abandoned by Ms Seidler during the course of the hearing.

14    Insofar as the present Statement of Claim is concerned, the differences between that Statement of Claim and the one considered by Cowdroy J were that the present Statement of Claim included:

(i)    in paragraph [1] the additional statements:

… QBE were the insurer in the matter involved in an undisclosed legal costs agreement made by the legal (Carroll & O’Dea and Steve Gibbs) involved a violation of s.313 and s.252 of the Legal Profession Act 2004. QBE paid the additional sum discovered paid in late 2010. (See Schedule 2).

(ii)    a new paragraph [174] which stated that “By reason of such conduct Seidler has suffered loss or damage” and set forth as “Particulars” a reference to “paragraph 144”. Other paragraphs of the Statement of Claim, it may presently be noted, also set forth claims for loss or damage.

(iii)    a new paragraph [175] setting forth an alleged violation of the Fair Work Act. But that allegation was withdrawn by Ms Seidler.

(iv)    a new “Schedule 2” which was a photocopy of a cheque payable to Carroll & O’Dea lawyers.

The Subject Matter of the Application For Leave To Amend

15    Left unamended, there would be no reason why the present Application and Statement of Claim should not suffer the same fate as their counterparts experienced before Cowdroy J.

16    Whether any different result should follow ultimately came down to the subject matter of the amendments foreshadowed by Ms Seidler. In the absence of any amendment to the present Statement of Claim, the two Statements of Claim were expressed in virtually identical terms.

17    On behalf of the Respondents, two principal submissions were advanced, namely:

    the amendments foreshadowed by Ms Seidler had already formed part of the case considered and resolved by Cowdroy J;

and, in the alternative and even if not resolved by Cowdroy J:

    the amendments would in any event fall within the Deed of Release. Any amendment was thus, so it was submitted, doomed to failure.

Neither submission could be resolved without considering at the outset the subject matter of the amendment proposed by Ms Seidler and how she now sought to present her amended case for resolution.

18    In an attempt to identify the differences between the proceeding resolved by Cowdroy J and her foreshadowed amendments, Ms Seidler initially focussed attention upon what she perceived had been the subject matter of her first complaint to the Commission and the claims the subject of the District Court proceeding. She then sought to contrast that subject matter with the claims now sought to be agitated by way of amendment. The Deed of Release, it was submitted, was to be construed in a manner so as not to operate as a release from the liability of the Respondents from these new claims.

19    It should be noted at the outset that no satisfactory explanation was given for the failure on the part of Ms Seidler to file a Notice of Motion seeking leave to amend as directed by Jacobson J almost a month earlier on 16 June 2011. The explanation provided in the form of submissions was that she said she experienced ‘capacity limitations’ and that she had been directing her attention to the application for leave to appeal rather than the present proceeding. The potential inadequacy of that explanation, however, can be left to one side.

20    There can be little doubt that the earlier complaint made to the Commission in October 2006 complained about “arm pain (regional pain)”. Reports relied upon by Ms Seidler include reports from Dr Davis and Professor Hedge. Professor Hedge, according to his report dated 27 September 2008, “runs … an independent ergonomics consulting company”. The Professor recorded that it “was not possible … to examine [Ms Seidler’s] actual workstation arrangement” but ended his report as follows:

CONCLUSIONS

From the measurements and observations taken Ms. Seidler was unable to safely work at her keyboard and mouse in a neutral, relaxed posture. An ergonomic evaluation of her workstation using the University of New South Wales checklist would have immediately identified her workstation arrangement as inadequate for safe working.

21    The shift in the forensic course now sought to be pursued by Ms Seidler places emphasis upon her mental condition. To support that claim she has obtained a report from Dr De Saxe.

22    Dr De Saxe is a Consultant Psychiatrist and prepared a report dated 4 April 2011. In that report he details the “assumptions” he has made, including a recitation of the allegations made by Ms Seidler whilst she was at the Australian Graduate School of Management. His diagnosis was that Ms Seidler suffers from a number of psychiatric, personality and physical disorders and a number of “psychosocial stressors”. The psychiatric disorders were listed as a chronic post-traumatic stress disorder, a major depressive disorder and panic disorder without agoraphobia. Dr De Saxe further had his attention directed to the position in late 2008 and early 2009 and opined that there was “no reason that the Respondents’, their legal [sic] and insurers should have anticipated another possible legitimate claim associated with mental health”.

23    Differences between a physical and a psychiatric or mental disability may be accepted.

24    There was, however, some reason to question whether the earlier complaints or claims were to be so narrowly confined to physical injury alone. Some limited reason for reservation may potentially be found in the Notice of Termination from the Commission dated 24 February 2011 and in the evidence that was relied upon for the purposes of making the first complaint and in the proceeding in the District Court.

25    In its Notice of Termination the Commission noted that the further complaint made by Ms Seidler “incorporates the subject matter of the complaint that was lodged against UNSW and AGSM in 2006” and that Ms Seidler had provided “further information regarding your allegations”. In summarising the “2008-2009 Allegations” reference was made to an “adjustment disorder” and an allegation that the Respondents “used their handling of your … records to intentionally traumatise you further and, in collusion with your legal representatives, to bully and harass you into settling …”. The Notice went on to explain the reasons for terminating the second complaint as follows:

My decision

…

I wish to advise that I have decided to terminate the aspects of your complaint which reiterate the allegations contained in your 2006 complaint on the basis that the subject matter of the complaint has already been adequately dealt with by the Commission.

I have decided to terminate the aspects of your complaint relating to alleged events that occurred prior to October 2009, on the basis that the complaint was lodged more than 12 months after the alleged unlawful discrimination took place.

I have decided to terminate the aspects of your complaint dealing with more recent allegations under section 46PH(1)(c) of the AHRCA on the ground that I am satisfied that these aspects of the complaint are misconceived or lacking in substance, or both.

I will explain the reasons for my decision.

Reasons for the decision

Alleged discrimination, harassment and victimisation prior to October 2009

…

Recent allegations

To support a claim of victimisation under section 42 of the DDA and section 94 of the SDA you should provide, or point to, evidence to indicate that the respondents subjected you to a detriment, or threatened to do so; and that the respondents acted in this way on the ground of an earlier complaint made under the SDA and/or DDA, or some other action specified in section 42 or 94 of the Acts.

I am of the view, based on the information currently before the Commission, that there is insufficient evidence to support a claim that the respondents are engaging in victimisation within the meaning of section 42 and 94 of the Acts in relation to the continuing operation of the Deed of Release which you executed in 2008.

The Commission’s views as to whether conduct was or was not within the terms of the Deed of Release may be left to one side. The Commission in its Notice thus separately addressed both the subject matter of the earlier complaint and the more “recent allegations”. But, at least to a limited extent, Ms Seidler was herself making a complaint which “incorporated” the earlier conduct. Although “further information” was provided to the Commission, the factual origin of the complaints remained the same and there was some overlap in the allegations being made – including the allegation being made earlier on as to an intention to “traumatise”.

26    The medical evidence previously relied upon by Ms Seidler for the purposes of the District Court proceeding provides a further basis for questioning whether such a clear distinction can be drawn between the previous reliance upon a physical injury and the more recent reliance upon a psychiatric condition. Thus, and perhaps not surprisingly, an earlier medical report provided by Dr Davis in July 2008 stated in part:

I believe that Ms Seidler has developed an Adjustment to Injury Disorder and has poor problem solving skills and coping mechanisms. I would therefore recommend that she be referred for counselling …

Dr Davis was a medical practitioner specialising in Occupational Medicine.

27    Notwithstanding some limited uncertainty, it has nevertheless been assumed that:

    the subject matter of the first complaint to the Commission and the District Court proceeding was confined to a complaint as to physical injury suffered by Ms Seidler; and that

    the subject matter of the proposed amendment to the existing Statement of Claim was a different claim, namely a claim as to psychiatric or mental injury or disability.

Those assumptions, however, leave unresolved the differences (if any) between the earlier proceeding before Cowdroy J and the present proceeding and the two principal submissions advanced on behalf of the Respondents.

The Subject Matter of the Earlier Proceeding

28    The first principal submission advanced on behalf of the Respondents was that the claims of Ms Seidler, no matter how expressed, had already been resolved by Cowdroy J and that there was no option but to follow the decision of His Honour. The written submissions filed on behalf of the Respondents contended that “the principles of res judicata and issue estoppel, present an insurmountable hurdle for the Applicant to progress with the present proceeding …”.

29    It does considerable disservice to the reasoning of His Honour to focus upon parts of it and to review that reasoning in isolation from the entirety of the judgment. For present purposes, however, it suffices to extract the following comments of His Honour when addressing the “facts”:

[8] On 20 February 2008 the applicant instituted proceedings (SYG 398 of 2008) in the FMC (“the FMC proceedings”) seeking relief under s 5 of the Disability Discrimination Act 1992 (Cth). The jurisdiction of the FMC was invoked pursuant to the extant s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth).

[9] On 28 February 2008 the applicant instituted proceedings (677 of 2008) in the District Court of New South Wales (“the District Court proceedings”) against UNSW. Such proceedings related to a claim by the applicant of negligence against UNSW allegedly arising out of the applicant’s workplace conditions.

[10] Subsequent to negotiations between the applicant, UNSW and AGSM, a document entitled “Heads of Agreement” (“HOA”) was signed by such parties on 14 October 2008. The HOA recites an agreement of the parties to settle both the District Court proceedings and the FMC proceedings for a sum of $65,000 “including all costs and expenses”. The HOA was stated to be subject to the execution of a Deed of Release.

[11] A Deed of Release was entered into and duly signed on 9 February 2009 by the applicant and by both UNSW and AGSM. The Deed of Release provided for the termination by the applicant of both the District Court proceedings and the FMC proceedings in consideration of a payment to be made to the applicant of $65,000, from which UNSW was authorised to make certain payments as provided by the Deed of Release.

[12] The District Court proceedings were discontinued on 9 February 2009 by the filing of a notice of discontinuance. The FMC proceedings were also discontinued on 20 February 2009 when the applicant filed a notice of discontinuance (“NOD”) in the FMC.

[13] On 3 June 2010 the applicant filed an “Application in a Case” in the FMC proceedings seeking to set aside the Deed of Release and the NOD. In support of such application, the applicant claimed that the HOA and the Deed of Release had been obtained as a result of fraud, intent to defraud, “legal criminal collusion”, duress, undue influence and unconscionability.

[14] A hearing of the FMC proceedings took place before Nicholls FM on 14, 15 and 16 September 2010.

[15] The judgment of Nicholls FM (see Seidler v University of New South Wales [2010] FMCA 887) (“the FMC decision”) delivered on 18 November 2010, records the substantial history of the complaints made by the applicant against UNSW and AGSM. …

His Honour thereafter considered the decision of the Federal Magistrate and the proceeding before him. In addressing the proceeding then before the Federal Court, His Honour summarised that proceeding in part as follows:

[33] The SOC under the heading “Dated Discoverability (TPA s 87G)” is virtually incomprehensible. It apparently alleges that the applicant sustained an “Adjustment Disorder and or Post Traumatic Stress Disorder (“PTSD”) in 2008 or 2009”. The applicant asserts that the respondents cannot claim that:

… this injury and or illness was part of the Deed and did not compensate for such. I was not informed regarding the meaning or causation of the Adjustment Disorder (“AD”) diagnosis until 2010. I was not informed of a misdiagnosis of chronic post traumatic stress disorder until 2010.

[34] The applicant alleges that the:

Respondents and the legal named [sic] within this statement of claim I allege sought to intentionally and or negligently attempt to cover up and or ignore this diagnosis, increase and prolong stress, trauma, aggravation, victimisation and suffering despite known reports of anxiety and despondency since 2005 to intentionally inflict mental harm and prolong suffering by chronically failing to provide care, resolution and or rehabilitation since 2005.

[35] The applicant then asserts:

The respondents have in no way compensated nor settled for PTSD nor even remotely for the damages I experienced and continue to experience. Medicare has never been re-imbursed for such medical care and thus neither has the public. No damages for pain, suffering and humiliation were compensated.

[36] The applicant then submits:

I was not aware of the ability to file under a TPA contravention until 2010 and certainly in no way well enough to do so. OLSC, Costs Assessments and Privacy complaints had to be finalized and all directed me back to court as outside their jurisdictions early to even still late in 2010 — despite being advised by legal to use such channels. I was misled, exploited and victimized.

His Honour then directed attention to the terms of the Deed of Release and in respect to the summary judgment application he concluded as follows:

[69] “The incident” is defined in the Deed of Release as the applicant’s alleged ergonomically unsafe workstation in the Honours Room whilst undertaking the honours program and her casual work as a research assistant from about March 2005 and continuing.

[70] The claims now made by the applicant are made against the same parties as those who executed the Deed of Release and against other officers or servants of those institutions. Accordingly, in these proceedings the individual respondents are entitled to the benefit of the Deed of Release, provided the Deed of Release extends to the current claims which the applicant now makes.

[71] Each of the claims now made arise out of the period when she was engaged at either UNSW or AGSM. By the express words of the Deed of Release, the applicant released the respondents not only from claims which were existing, but any future claim that she might have arising out of her engagement at UNSW and/or AGSM either as a student or as an employee.

[72] Insofar as the applicant now seeks to institute what she claims are new matters, namely her alleged PTSD and also a claim under the Fair Work Act, those are claims which she “might at any time have or have had” and as such are also covered by the Deed of Release. Accordingly the respondents are entitled to plead in answer to her SOC the bar provided by cl 10.1 of the Deed of Release.

[73] The complaints which the applicant raises in her SOC of improper conduct, fraud, collusion and duress whilst engaged by AGSM or studying at UNSW were raised in the FMC proceedings and were duly answered by Nicholls FM. Further, the applicant’s allegations concerning duress, threats and undue influence in relation to her entry into the Deed of Release were also expressly raised before his Honour and findings were made by his Honour in relation to such allegations.

[74] In the absence of any appeal from the decision of Nicholls FM it must be taken that his Honour’s findings concerning the validity of the Deed of Release, its comprehension by the applicant prior to entering into the Deed of Release, and the circumstances surrounding its execution have been established beyond doubt.

[75] Other claims raised by the applicant including alleged breaches of the TPA seek to raise issues which arise out of the same factual matrix relied upon by the applicant in the FMC proceedings. The applicant now alleges that she was unaware “of the ability to file under a TPA contravention until 2010”. However, the applicant sought to raise TPA claims before Nicholls FM. Insofar as the applicant now seeks to raise claims that she has not been compensated for her alleged PTSD, the facts relied upon to support such a claim are those which arose in 2008 or 2009 and as such fall within the ambit of the Deed of Release.

[76] Any complaint now concerning the operation of the Fair Work Act can have no consequence, not only because of the existence of the Deed of Release but also because the Fair Work Act only came into operation on 1 July 2009.

[77] The court considers that the other claims made by the applicant, to the extent such claims can be discerned to any level of certainty, all fall within the ambit of the Deed of Release.

It is unnecessary to further set forth His Honour’s conclusions in respect to the application founded upon Order 11 r 16 or Order 20 r 5 of the Federal Court Rules.

30    Cowdroy J, with respect, was clearly correct when he observed that the Statement of Claim “under the heading ‘Dated Discoverability (TPA s 86G)’ is virtually incomprehensible”: [2011] FCA 640 at [33]. That which is clear, however, is that the reference there made to “post traumatic stress disorder” is a reference at least in part to the condition the subject of the opinion of Dr De Saxe. The reference there noted by Cowdroy J was not an isolated reference. The Statement of Claim considered both by His Honour and that now before the Court, for example, also later stated under the heading “Employment and Enrollment Conditions”:

In the SYG398 of 2008 hearing the court, I feel, did not allow me reasonable time frames by which I could procure expert reports to inform the court and or to advise on or seek stabilisation and or degree of impairment. The issues thus of fitness to sign, Deed and damages particularisation within that Deed, and or issues of duress, undue influence and unconscionability and total damages were not heard or assessed fairly. Nothing can or should be assessed or evaluated without such expert advice. There were I claim inaccurate claims and or understanding made by the Federal Magistrate regarding post traumatic stress disorder which will be now addressed with expert medical. Expert appraisal also could have been ordered by the court. This was expected to be prejudicial and I noted this to the court and the Magistrate claimed he was aware of that. I feel that this does not reflect the intentions of the court in any cases of mental illness and or mental and emotional duress for any party.

The reference to “SYG 398” is a reference to the proceeding before the Federal Magistrate: Seidler v University of New South Wales [2010] FMCA 887. Reference to “post traumatic stress disorder and or other related damages” was also made in paragraph [62]. Specific reference, however, should be made to paragraph [144] and the express claim there made for loss and damage, including loss and damage occasioned by “post traumatic stress disorder, anxiety and depression”.

31    The clear distinction sought to be drawn by Ms Seidler as between the issues previously addressed and resolved by Cowdroy J and the subject matter of the proposed amendment disappears. Any characterisation of reliance upon a mental or psychiatric injury as a new issue not previously addressed is without substance. It was an issue which emerged before the Federal Magistrate and was expressly included within the Statement of Claim that was before Cowdroy J.

32    Both of the Statements of Claim also allege (in paragraph [36]) with reference to the proceeding before the Federal Magistrate that “[t]his prior action is thus flawed for any Magistrate assessment due to the failure of legal to do work and file according to court timetables …”. Whether or not there is any merit in an allegation that the “prior action is … flawed”, the fact is that there has been no appeal from the Magistrate’s decision.

33    The manner in which Ms Seidler has drafted her pleadings is the very source of such uncertainty as is now generated. To the extent that that uncertainty may be pierced, it is considered that the decision of Cowdroy J was a decision which embraced the case now sought to be advanced by way of amendment.

34    There is, accordingly, considered to be little doubt but that the Application and the Statement of Claim in the present proceeding should suffer the same fate as their counterparts received at the hands of Cowdroy J in Seidler v University of New South Wales [2011] FCA 640. Not only was Ms Seidler seeking to re-litigate in the present proceeding the very same facts and causes of action as had been resolved by Cowdroy J, she was seeking to do so in the very same terms. The greater emphasis now sought to be placed by Ms Seidler upon her mental conditions, as opposed to the emphasis previously given to her physical injury, does not make the present claims any different to those considered and resolved by Cowdroy J. A litigant cannot unsuccessfully place emphasis upon one aspect of a case before one Judge and thereafter be permitted to place greater emphasis upon another aspect of a case before a different Judge – especially by means of a pleading in substantially identical terms. With the minor exceptions noted, the two Statements of Claim were identical. It would be difficult to envisage a more blatant abuse of process.

35    Any amendment proposed by Ms Seidler would, it is concluded, be but an attempt to re-plead an issue that had been badly and inappropriately pleaded in the other proceeding.

36    Ms Seidler should not now be permitted by way of amendment to re-litigate an issue that has already been resolved. Leave to amend should be refused and judgment entered for the Respondents.

The Deed Of Release

37    It is thus unnecessary to resolve the second of the Respondents’ principal submissions.

38    Even if it had been concluded, however, that the proposed amendments were not already the subject of decision by Cowdroy J, it is in any event further concluded that that second submission should also be accepted. Any proposed amendments of the kind broadly foreshadowed by Ms Seidler would fall within the reach of the Deed of Release. If they did, it would matter not whether the issues as sought to be recast were also in any event embraced by the findings and reasons of Cowdroy J.

39    The Deed of Release set forth a number of recitals under the heading of “Background” as follows:

Background

A.    In about January 2005 the Releasor was accepted into the First Releasee’s Honours Program in Marketing (“the Honours Program”).

B.    As part of the Honours Program, the Releasor undertook coursework and prepared a thesis.

C.    In about March 2005, the First Releasee provided a communal office to students in the Honours Program including, amongst others, the Releasor (“the Honours Room”).

D.    In about March 2005 the Second Releasee offered the Releasor, and the Releasor accepted, casual work as a research assistant (“the Employment”).

E.    In about April 2005 the Employment came to an end.

F.    The Releasor alleges she suffered personal injury as a result of working at an ergonomically unsafe workstation in the Honours Room whilst undertaking the Honours Program and the Employment from about March 2005 and continuing (“the Incident”).

G.    In 2005 and 2006, the Releasor made various complaints about Professor Pamela Morrison, Professor Ian Wilkinson, Professor Paul Paterson and other academic staff of the First Releasee (“the Complaints”).

H.    In 2006 the Releasor completed the Honours Program.

I.    On or about February 2007, the Releasor lodged a complaint of disability discrimination with the Human Rights and Equal Opportunity Commission (“the HREOC Complaint”).

J.    On 23 January 2008, HREOC terminated the HREOC Complaint pursuant to section 46BH(1)(l) of the Human Rights and Equal Opportunity Commission Act 1986.

K.    On 20 February 2008, the Releasor commenced proceedings by way of an Application in the Federal Magistrates’ Court of Australia, being proceedings number SYG398 of 2008 (“the FMCA Proceedings”).

L.    On 28 February 2008, the Releasor issued a Statement of Claim against the First Releasee in proceedings numbered 677 of 2008 in the District Court of New South Wales at Sydney, alleging the incident was caused by the First Releasee’s negligence (“the District Court Proceedings”).

M.    The First and Second Releasees dispute the allegations and matters raised in the Complaints, the HREOC Complaint, the FMCA Proceedings and the District Court Proceedings.

N.    The Releasor and Releasees agreed to resolve the Complaints, the HREOC Complaint and the FMCA Proceedings on the basis the Releasor discontinues the FMCA Proceedings with each party to pay their own costs of those proceedings.

O.    The parties have had the opportunity to seek legal advice about the terms of this Deed.

P.    Without admission of any facts, matters or circumstances, the parties have agreed to resolve the Complaints, the HREOC Complaint, the FMCA Proceedings and the District Court Proceedings on the terms set out in this Deed.

40    The Deed of Release then set forth under the heading of “Operative provisions” the following provision:

2    Release

2.1    In consideration of the payment under clause 1.1 hereof, the parties release and discharge each other, their officers, servants and agents, and any related entity, from all actions, suits, claims, demands and causes of action both at law and in equity (and any associated costs) which the parties may now have or which but for this document could, would or might at any time have or have had, on or against each other, their officers, servants and agents, and any related entity, regarding or arising out of:-

2.1.1    The matters set out in this Deed; and/or

2.1.2    The Incident; and/or

2.1.3    The Employment; and/or

2.1.4    The termination of the Employment; and/or

2.1.5    The Honours Program; and/or

2.1.6    The matters arising out of the Complaints; and/or

2.1.7    The matters arising out of the HREOC Complaint; and/or

2.1.8    The FMCA proceedings (SYG398/2008); and/or

2.1.9    The District Court Proceedings (677 of 2008).

41    The case for Ms Seidler was that the generality of the release clause was to be read subject to the recitals set forth in the “Background” and confined to a release from liability for physical and not psychiatric or mental injury.

42    There can be little doubt that a principal focus of the draftsman when drafting the Deed of Release was upon the “personal injury” that had been the subject of complaint and upon the subject matter of the District Court proceeding. There can equally be little doubt that the draftsman also had at the forefront of his mind an intent to draft the terms of the release in as wide a manner as possible in exchange for the payment of settlement monies.

43    As noted by Cowdroy J in his judgment, the manner in which a deed of release is to be construed has been considered by the High Court in Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112. It was there concluded that the general words in a release are always limited to that thing or things which were specially in the contemplation of the parties at the time when the release was given. Dixon CJ, Fullagar, Kitto and Taylor JJ noted that from “a very early time the Court of Chancery applied its special doctrines to the unconscientious reliance upon the general words of a release”: (1954) 91 CLR 112 at 125. Their Honours reviewed the authorities and concluded as follows:

From the authorities which have already been cited it will be seen that equity proceeded upon the principle that a releasee must not use the general words of a release as a means of escaping the fulfilment of obligations falling outside the true purpose of the transaction as ascertained from the nature of the instrument and the surrounding circumstances including the state of knowledge of the respective parties concerning the existence, character and extent of the liability in question and the actual intention of the releasor [(1954) 91 CLR 112 at 129- 130].

A little later their Honours further said:

The question is whether upon a proper interpretation of the deed the general release clause should be restrained to matters in dispute within the meaning of these recitals. The question depends primarily on the application of the prima facie canon of construction qualifying the general words of a release by reference to particular matters which recitals show to be the occasion of the instrument. But it is also affected by the general tenor of the deed. It is unnecessary to say more about the canon of construction or to discuss further the contents of the deed. As to the first all that remains is to apply the principle that prima facie the release should be read as confined to the matters forming the subject of the disputes which the deed recites ... [(1954) 91 CLR 112 at 131].

In Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 at 29, Gleeson CJ and Handley JA expressed the rule as being “that the general words of a release will, in an appropriate case, be read down to conform to the contemplation of the parties at the time the release was executed”. See also Kirby P: (1992) 28 NSWLR 26 at 43 to 44. The approach in Grant & Sons has been repeatedly applied both by this Court (e.g., Playcorp Group of Companies Pty Ltd v Peter Bodum [2010] FCA 23 at [206] to [208] per Middleton J) and other courts (e.g., Karam v ANZ Banking Group Ltd [2001] NSWSC 709 at [406] per Santow J; Snowy Mountains Organic Dairy Products Pty Ltd v Wholefoods Pty Ltd [2008] VSC 405 at [33] to [39], 21 VR 43 at 53 to 55 per Beach J; Butler v St John of God Health Care Inc [2008] WASCA 174 at [3] to [4] per Buss JA, at [31] to [36] per Newnes AJA; Fraser v Irish Restaurant & Bar Co Pty Ltd [2008] QCA 270 at [48] per Muir JA, at [62] to [64] per Wilson J, McMurdo P agreeing) in respect to the construction of settlement agreements and deeds of release.

44    Notwithstanding some reservation, it is concluded that the Deed of Release is drafted in sufficiently wide terms such as to preclude any amendment sought to be made by Ms Seidler having any chance of success.

45    Unquestionably, the recitals in the Deed of Release expressly state the agreement of the parties “to resolve the Complaints, the HREOC Complaint, the FMCA Proceedings and the District Court Proceedings”. The Deed of Release also expressly refers to the “personal injury” said to have been suffered “as a result of working at an ergonomically unsafe workstation”. And the “HREOC Complaint” refers to the first complaint, terminated on 23 January 2008, and not the subsequent complaint. The reference to “personal injury” may also be read as a reference to the “personal injury” which was the subject of the first complaint to the Commission. Such factors obviously point to a conclusion that the general terms of the release are susceptible of being construed as subject to a constraint of some kind.

46    But those factors which it is ultimately concluded lead to a conclusion that the terms of the release are not to be confined in the manner advocated by Ms Seidler are the following:

    the historical “background” as set forth in the Deed of Release extending beyond a mere recital of the history of complaints and litigation extending from February 2007 to at least February 2008 and extending back to a recital of the events of 2005 and the acceptance of Ms Seidler into “the Honours Program” and her “Employment”;

    the terms in which the “release” was expressed, including a release from liability in respect to “all actions” extending to those actions which “the parties may now have or which but for this document could, would or might at any time have or have had”; and

    the fact that the parties “had the opportunity to seek legal advice about the terms of this Deed”.

It is concluded that the very width of the terms of the release manifest an intention of the parties that the subject matter of the release was a release from all liability arising out of Ms Seidler’s association with the University and her employment. The matters addressed in clauses 2.1.1 to 2.1.9 go well beyond the subject matter of the first complaint made to the Commission and the subject matter of the District Court proceeding. They were but two instances which had occasioned dispute. The intention of the parties, discerned from the recitals and the remaining terms of the Deed of Release itself, was to resolve all matters arising out of Ms Seidler’s acceptance into the “Honours Program” and her employment by the payment of settlement monies. In return for that payment, Ms Seidler signed a release in respect to all actions that she “would or might at any time have” in respect to matters “arising out of” each or any of the matters set forth in clauses 2.1.1 to 2.1.9. A manifestation of a different injury, or a claim for a different injury, remains a matter arising out of (in particular) her employment.

47    To constrain the very width of the terms of the release clause by reference to recitals F and M (for example) would be to read those provisions in isolation from the remaining recitals and in isolation from the manner in which clause 2 has been deliberately drafted. And the width of the terms of the release clause was presumably a matter in respect to which Ms Seidler had had “the opportunity to seek legal advice …”.

48    Such a construction of the terms of the release, it is concluded, does not depart from any “canon of construction” such that the general terms of the release are being used as a “means of escaping the fulfilment of obligations falling outside the true purpose of the transaction”. The conclusion gives effect to both the recitals and the terms of the release. Reliance cannot be placed upon any one particular recital or a limited selection of recitals – divorced from a consideration of the other recitals and the context in which the Deed of Release was executed – to give the terms of the release a meaning which it otherwise does not naturally bear.

Conclusions

49    The Application and the Statement of Claim presently before the Court are substantially identical to those which were before Cowdroy J. If the Application and Statement of Claim remain unamended, judgment should be entered for the Respondents. Concurrence is expressed with the reasoning and orders of Cowdroy J in Seidler v University of New South Wales [2011] FCA 640. The substantial identity between the two proceedings is in itself a further reason to conclude that the present proceeding is a manifest abuse of process.

50    The application made orally by Ms Seidler to amend her Application and Statement of Claim to now expressly seek to challenge the dismissal of her second complaint to the Commission on 24 February 2011 should be rejected. The proposed amendments have already been resolved by the decision of Cowdroy J and, in any event, would fall within the Deed of Release. Any amendments would thus have no prospects of success.

51    Judgment should be entered for the Respondents pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth).

ORDERS

The Orders of the Court are:

1.    Judgment be entered for the Respondents pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth).

2.    The Applicant in the proceeding, Ms Kathryn Seidler, is to pay the costs of the Respondents.

Associate:

Dated:    26 July 2011