FEDERAL COURT OF AUSTRALIA

Seidler v University of New South Wales [2011] FCA 1156

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed.

2.    The applicant pay the respondents’ costs on an indemnity basis.

3.    Leave be granted to the respondents to have all costs orders made in the proceedings to date taxed forthwith.

4.    The proceedings be stood over to 10:15am on Tuesday 15 November 2011 to consider whether the Court should, of its own motion, exercise the power in rule 6.03(1) of the Federal Court Rules 2011 to prevent the applicant from commencing any further proceedings in this Court without the leave of the Court first being obtained.

5.    The respondents be excused from appearing on the next occasion.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. The text of entered orders can be located using Federal Law Search on the Court’s website.

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed.

2.    The applicant pay the respondents’ costs on an indemnity basis.

3.    Leave be granted to the respondents to have all costs orders made in the proceedings to date taxed forthwith.

4.    The proceedings be stood over to 10:15am on Tuesday 15 November 2011 to consider whether the Court should, of its own motion, exercise the power in rule 6.03(1) of the Federal Court Rules 2011 to prevent the applicant from commencing any further proceedings in this Court without the leave of the Court first being obtained.

5.    The respondents be excused from appearing on the next occasion.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    Ms Seidler applies for leave to appeal from orders made on 9 June 2011 by Cowdroy J and from orders made on 26 July 2011 by Flick J. In both cases, their Honours gave judgment in favour of the eight respondents on a summary basis, pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and ordered Ms Seidler to pay the respondents’ costs. These decisions are taken, by reason of that Act, to be interlocutory and hence leave is required.

2    Cowdroy J concluded that Ms Seidler’s proceedings before him were barred by the terms of a deed of release which Ms Seidler had executed at an anterior time: Seidler v The University of New South Wales [2011] FCA 640 at [67]-[78]. His Honour was unmoved by Ms Seidler’s contention that the heads of agreement which had led to the deed of release was invalidated because he thought that this question had been resolved by Nicholls FM in another case, Seidler v University of New South Wales [2010] FMCA 887, so that its pursuit before this Court constituted an abuse of process (at [84]). Furthermore, his Honour regarded the form of Ms Seidler’s statement of claim before him as warranting the appellation ‘embarrassing’ (at [90]).

3    Of the second proceedings before him, Flick J noted them to be substantially identical in terms to those which had been before Cowdroy J, subject to some minor differences: Seidler v University of New South Wales [2011] FCA 830 at [12]-[14]. His Honour thought that Ms Seidler was attempting to re-litigate what had already been determined by Cowdroy J and considered that a sufficient basis by itself to enter judgment in favour of the respondents (at [34], [36]). Had his Honour not been minded to adopt that course, he too would have been willing to conclude that the deed of release could be pleaded in bar of the claim. He declined an oral application by Ms Seidler for leave to amend her statement of claim because the proposed amendments, in substance, were part of the same case which had been before Cowdroy J.

4    I have no doubt that leave must be refused in both cases. Ms Seidler was originally employed as a research assistant at the Australian Graduate School of Management on a casual basis. Her employment was terminated on 13 December 2005. Whilst in employment, Ms Seidler claims to have developed a repetitive strain injury in her arms and wrists predominantly as a result of her work conditions. Following the cessation of her employment, she claimed that she had been the victim of discrimination and unfair treatment at the hands of the first respondent (‘the University’) and various nominated members of its staff. She lodged a complaint under the Australian Human Rights Commission Act 1986 (Cth) with the then Human Rights and Equal Opportunities Commission to that effect.

5    In due course, that complaint was terminated by the Commission and proceedings were then commenced, as the Australian Human Rights Commission Act contemplates, by Ms Seidler before the Federal Magistrates Court. At the same time, she issued proceedings out of the District Court of NSW in relation to the injury to her arms. Both of those proceedings were eventually settled on the terms of a document entitled ‘Heads of Agreement’ which was dated and executed on 14 October 2008. It provided, amongst its terms, for the provision of discontinuances of the two sets of proceedings, for a deed of release and for the payment by the University to Ms Seidler of $65,000. All of these events thereafter occurred. The proceedings were discontinued, the deed of release was executed and Ms Seidler was paid $65,000.

6    It appears, however, that Ms Seidler then fell into dispute with her attorneys about the costs which they had incurred on her behalf. As a result, in part, of that disagreement, Ms Seidler has become and remains dissatisfied with the outcome of the settlement as a whole. She thereafter commenced fresh proceedings before the Federal Magistrates Court. She contended that the true settlement sum had been $80,000 and that the University, its lawyers and her former lawyers had fraudulently colluded to arrive at the $65,000 figure. Nicholls FM rejected this claim in its entirety, following a three-day trial: Seidler v University of New South Wales [2010] FMCA 887 at [100]-[106]. In particular, his Honour dealt at length and in detail with Ms Seidler’s evidence that the true figure was $80,000 and he rejected it. As his Honour said (at [105]):

There is no evidence before the Court other than Ms Seidler’s uncorroborated, and it must be said, self-serving statement that the settlement amount offered initially was actually ever $80,000. In the face of the overwhelming evidence to the contrary, this must be rejected.

7    Ms Seidler has not sought to appeal from this judgment, which was given on 18 November 2010. Undaunted, she thereafter commenced the proceedings of which mention has already been made before Cowdroy J, in which she claimed relief for what she termed an adjustment disorder and/or post-traumatic stress disorder in 2008/2009. In essence, she sought to argue that her adjustment disorder and/or post-traumatic stress disorder had been caused by the manner in which her original claims had been handled by the University and its lawyers.

8    The deed of release had provided for release of the respondents ‘from all actions, suits, claims, demands and causes of action both at law and in equity’, which the parties ‘might at any time have or have had’ arising out of, inter alia, ‘the Incident’ (which was a reference, as a defined term in the deed, to the original circumstances giving rise to the injury to Ms Seidler’s arms) or the ‘termination of the Employment’ (which was also defined in terms which picked up the circumstances in which Ms Seidler had ceased to be an employee of the University).

9    Cowdroy J thought that the events now relied upon to argue that Ms Seidler developed the adjustment disorder and/or post-traumatic stress disorder were matters which were plainly covered by the release. I entirely agree. An appeal from that conclusion has, in my opinion, no prospects of success and, accordingly, leave is declined.

10    Having then lost, Ms Seidler commenced the proceedings before Flick J where the allegations were very largely the same, although not identical, to those which were made before Cowdroy J. His Honour concluded that, in substance, the two claims were the same. On that basis, he dismissed the claims before him, they already having been determined by Cowdroy J. In this, his Honour was, in my opinion, plainly correct. His Honour also declined an application by Ms Seidler to amend the pleadings before him to raise the adjustment disorder issue. Flick J so declined this application on the basis that these were matters which had, in substance, already been dealt with by Cowdroy J. I, too, agree. In any event, I have no doubt that the proceedings before Flick J also plainly fell within the terms of the deed of release.

11    Before me, Ms Seidler sought to adjourn the present proceedings so that she could bring on an application for an appeal from the decision of Nicholls FM. Those proceedings were heard and determined nearly a year ago. I did not see that it would be appropriate to adjourn the proceedings yet again to allow that to occur. In all of those circumstances, both applications for leave to appeal are refused. In my opinion, the present application and the proceedings before Cowdroy and Flick JJ were plain abuses of process. In those circumstances, I make the following orders in both sets of proceedings:

1.    The application for leave to appeal be dismissed.

2.    The applicant pay the respondents’ costs on an indemnity basis.

3.    Leave be granted to the respondents to have all costs orders made in the proceedings to date taxed forthwith.

4.    The proceedings be stood over to 10:15am on Tuesday 15 November 2011 to consider whether the Court should, of its own motion, exercise the power in rule 6.03(1) of the Federal Court Rules 2011 to prevent the applicant from commencing any further proceedings in this Court without the leave of the Court first being obtained.

5.    The respondents be excused from appearing on the next occasion.

Associate:

Dated:    6 October 2011