Federal Court of Australia

Leach v Commonwealth of Australia [2021] FCA 158

ORDERS

THE COURT ORDERS THAT:

1.    The separate question identified by Order 3 of the orders made on 22 January 2021 be answered as follows:

The applicant is not entitled to the declaration referred to in prayer 2 of the amended originating application.

2.    The proceeding as against the first respondent be dismissed with costs.

3.    The applicant file a further amended originating application removing the first respondent as a party within 14 days.

4.    The balance of the proceeding be referred to the National Operations Registrar for allocation to a docket judge other than Lee J and be listed for further case management on a date to be fixed.

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

REASONS FOR JUDGMENT

LEE J:

A    INTRODUCTION

1    This proceeding commenced in November last year.

2    In broad summary, the applicant, Ms Leach, was employed by the second respondent, a former Senator of the Commonwealth, Mr Burston, on behalf of the first respondent, the Commonwealth. Ms Leach claims that Mr Burston discriminated against her on the ground of sex and engaged in sexually harassing conduct in contravention of ss 5, 14, 26, 28A, 28G(2) and 28L of the Sex Discrimination Act 1984 (Cth) (Act). She also asserts that Mr Burston committed acts of victimisation in contravention of s 94 of the Act.

3    More importantly for present purposes, Ms Leach claims that the Commonwealth is vicariously liable for the actions of Mr Burston in accordance with s 106 of the Act (Sexual Harassment Claim).

4    Ms Leach seeks leave to bring her application against the Commonwealth under ss 46PO(1) and 46PO(3A)(a) of the Australian Human Rights Commission Act 1986 (Cth); she seeks substantive relief in terms of statutory compensation and damages, including aggravated and exemplary damages.

5    When the matter first came before me, an elaborate timetable was proposed, by consent, by which Ms Leach’s leave application would be case managed and then listed for determination.

6    I did not make the orders proposed by the parties because it emerged at the first case management hearing that the issue of leave to bring the Sexual Harassment Claim would turn on whether the Commonwealth was able to rely upon a Deed of Release made on 16 January 2019 (Deed), entered into following a Fair Work Commission (FWC) conciliation, by which (in circumstances examined in detail below), Ms Leach released the Commonwealth from any “Claims” arising out of, or any way related to her former employment.

7    The difficulty for Ms Leach evident at the first case management hearing was that no final relief had been sought in relation to the Deed in the originating application. Belatedly confronting the difficulty that Ms Leach faced given the terms of the Deed, and by leave, an amended originating application was filed, whereby a declaration was sought that the Deed does not prevent Ms Leach from bringing her Sexual Harassment Claim against the Commonwealth.

8    It was against this background that the leave application was fixed for hearing on 22 January 2021.

9    Following the amendment to the originating application, it became apparent to me that the determination of the entitlement to the declaration on a final basis as to the scope of the restraint put in place by the Deed was likely to take no longer to hear and argue than the determination of the entitlement to leave. Consequently, on the day the leave application was listed, after a short adjournment allowing the parties to take instructions, and with the consent of the parties, I identified a question, to be determined separately, as to whether or not Ms Leach was entitled to declaratory relief against the Commonwealth.

10    I did so because it was common ground that if Ms Leach was entitled to the declaration, then she would be entitled to pursue her other substantive claims against the Commonwealth (being the Sexual Harassment Claim); if she was not entitled to the declaration (meaning the Deed was able to be enforced according to its terms), she would be prevented from maintaining the Sexual Harassment Claim as against the Commonwealth and her proceeding against the Commonwealth must necessarily be dismissed.

11    Accordingly, on the morning of 22 January 2021, I made orders in the following terms:

1.    The applicant be granted leave to file and have returnable instanter the amended originating application under the Australian Human Rights Commission Act 1986 (Cth) annexed to the submissions filed by the applicant on 18 January 2021.

2.    Leave be granted to the applicant nunc pro tunc to bring her application against the first respondent under ss 46PO(1) and 46PO(3A)(a) of the Australian Human Rights Commission Act 1986 (Cth).

3.    Pursuant to s 37P of the Federal Court of Australia Act 1976 (Cth) and FCR 30.01 the entitlement to a declaration referred to in prayer 2 of the amended originating application (as set out in that document under the heading “Other relief”) be determined separately and before any other issue arising in the proceeding (Separate Question).

4.    The Separate Question be listed for hearing on a final basis at 2pm on 22 January 2021.

12    As it turned out, the half day set down for hearing of the Separate Question was insufficient, and after receiving the evidence, the matter was adjourned part-heard to be concluded on 19 February 2021.

B    THE NATURE OF THE DECLARATORY RELIEF

13    No claim was made for some form of statutory intervention in relation to the Deed or the ambit of its operation. Hence, as noted above, it was common ground that the only basis upon which Ms Leach is entitled to bring the Sexual Harassment Claim she now seeks to make against the Commonwealth, is if she is successful in asserting her equity.

14    The claim of Ms Leach is based on the equitable principle expressed in Grant v John Grant & Sons Proprietary Ltd (1954) 91 CLR 112, by which equity will restrain a party, in this case the Commonwealth, from unconscientious reliance upon legal rights based on general words in a release.

15    As Pembroke J explained in The Owners Corporation of Strata Plan 61390 v Multiplex Corporate Agency Proprietary Limited and Ors (No 2) [2012] NSWSC 322 (at [23]) there are actually two aspects to the reasoning of the joint judgment in Grant.

16    First, as a matter of construction, there is the principle that the general words of the release should be construed by reference to “the subject matter of the particular disputes which the recitals said the parties had resolved to settle on the terms of the deed”: Stata Plan 61390 (at [23]). This first aspect of the decision in Grant depends upon the interpretation of the release according to settled rules of construction and is based on the notion that general words should not be permitted to subvert what the parties should be taken to have intended when the release is properly construed in context.

17    It is the second aspect of the decision in Grant that is relied upon by Ms Leach and which forms the basis of her claim for declaratory relief. Despite its length, it is useful to set out how Pembroke J explained the relevant principle in Stata Plan 61390 (at [27]–[30]).

[27]     … the second aspect of the decision in Grant v John Grant & Sons (supra) involves the application of equitable principle. The joint judgment explained that acceptance of the facts that were pleaded in that case made it inequitable for the releasee to set up the general words of the release in answer to the particular liability that the releasor now sought to enforce. That is because the liability had nothing to do with the subject matter of the deed of release. It was quite extraneous to it. And the releasee’s attempt to defend the liability by resort to the general words of the release was unconscionable and opportunistic. This was an additional ground for arriving at the ultimate result. It was the context in which the pleaded facts relied upon included the propositions that the releasor did not know of the liability now sought to be enforced, did not intend to release it as part of the transaction and did not know of any intention on the part of the releasee that it should be released: Grant v John Grant & Sons (supra) at 130.

[28]     The court held that in the circumstances it would be unconscientious to allow the general words of the release to be relied upon. The equity was described as one “to have the general words of a release confined to the true purpose of the transaction ascertained from the scope of the instrument and the external circumstances”: Grant v John Grant & Sons (supra) at 130. It is clear from what appears earlier on the same page that “the circumstances” might include the actual intention of the releasor. The joint judgment referred to 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 releaser”: Grant v John Grant & Sons (supra) at 130. It is also clear that the question mark at the bottom of the page is a typographical error.

[29]     This aspect of the reasoning was a particular illustration of one of the many ways in which equity restrains a party from any unconscientious reliance on legal rights. Naturally, the trigger for the application of the equitable principle must be some feature of the facts or conduct of one of the parties that is against conscience. That is why the joint judgment in Grant’s case endorsed (at 125) Kerly’s statement in his Historical Sketch of the Equitable Jurisdiction of the Court of Chancery that:

The peculiar construction of releases in equity, which restricts their operation to matters within the contemplation of the parties, rests also partly on mistake of expression and partly on mistake going to the substance of the transaction.

In other words, equity permits an investigation of the circumstances, including consideration of the actual intentions of the parties, in order to determine whether enforcement of the general words of a release would be against conscience.

[30]    Significantly however, the joint judgment in Grant v John Grant & Sons (supra) also recognised that there will always be cases where, properly characterised, the parties should be taken to have intended that the general words of a release should operate to encompass all conceivable further disputes, whether disclosed or not and whether within the knowledge of a party or both parties, or outside of it: Grant v John Grant & Sons (supra) at 129. In such a case there is no room for the application of equitable principle. The equitable principle only has a role to play when it appears from the terms or the context or other admissible evidence, that the enforcement of the legal right would, by a literal application of the general words of a release, be against conscience. It would not be against conscience if the court is satisfied that the parties intended “upon a particular and solemn composition for peace” to release uncertain demands and presently unknown claims: Salkeld v Vernon (1758) 1 Eden 64 at 67-68, cited in Grant v John Grant & Sons (supra) at 129.

18    Recently, the Full Court (Rares, Markovic and Bromwich JJ) also had cause to consider the relevant principles in Sarina v Fairfax Media Publications Pty Ltd [2018] FCAFC 190; (2018) 365 ALR 15 (21–2 [20]–[21]).

19    Needless to say it is Ms Leach, as the moving party, who bears the onus of establishing that the reliance by the Commonwealth on the legal terms of the Deed would, in all the circumstances, be contrary to conscience such that equity would intervene.

C    THE RELEVANT CHRONOLOGY

20    The relevant background and events concerning Ms Leach’s employment and the execution of the Deed were largely not in dispute and can be summarised as follows:

(1)    On or around 1 September 2016, Ms Leach commenced employment as a member of the electoral office staff of Mr Burston. Ms Leach was employed by Mr Burston acting on behalf of the Commonwealth under s 20 of the Members of Parliament (Staff) Act 1984 (Cth) as an Electorate Officer Level B (it is common ground that the Commonwealth was her employer).

(2)    During that employment, and in the period up to October 2018, Ms Leach alleges she was subjected to conduct that she contends amounted to sexual harassment and sex discrimination contrary to the Act (leading to the Sexual Harassment Claim).

(3)    On 29 October 2018, Ms Leach’s employment was terminated with immediate effect as a result of matters that had occurred over the preceding weekend, which are presently unnecessary to detail.

(4)    On or around 16 November 2018, Ms Leach made an unfair dismissal claim to the FWC under Pt 3-2 of the Fair Work Act 2009 (Cth) (Unfair Dismissal Claim).

(5)    The Unfair Dismissal Claim was subsequently the subject of a teleconference conciliation conducted by Ms Jill Gates of the FWC on 11 December 2018 (conciliation conference); the other participants were Ms Lauren Barons (the Assistant Secretary of the Advice and Support Branch in the Ministerial and Parliamentary Division of the Department of Finance) and Ms Catherine Mann (a solicitor employed by the Australian Government Solicitor); Ms Barons and Ms Mann made contemporaneous notes of what occurred during the conciliation conference (although at some stages Ms Gates had separate communications with Ms Leach).

(6)    On 17 December 2018, the Commonwealth made a detailed offer of settlement (Settlement Offer) compromising the Unfair Dismissal Claim, but expressly notifying Ms Leach that any settlement would not include a claim for workers compensation (Compensation Claim); in this regard, the Settlement Offer stated that the “deed would not prevent you from making a workers’ compensation claim to Comcare for any work-related injury”.

(7)    On 8 January 2019, a conversation took place between Ms Mann and Ms Leach in which Ms Leach explained that she was considering whether or not she wanted to resolve her claims against the Commonwealth on a full and final basis; Ms Mann made a contemporaneous note of this conversation.

(8)    On 11 January 2019, there was an exchange of emails between Ms Mann and Ms Leach; during these exchanges Ms Leach referred to obtaining advice on the proposed deed (a course that had been recommended when she had previously seen Legal Aid).

(9)    At 9:31am on 14 January 2019, a draft deed was provided by email to Ms Leach “for your consideration”. Ms Mann had a conversation with Ms Leach on the same day during which some terms of a proposed deed were discussed, including obligations as to confidentiality and during which Ms Mann said words to the effect: “if you don’t want to settle then [you] have to have your documents into the FWC by the 16th according to my calendar”; Ms Leach was also recorded (in Ms Mann’s contemporaneous note) as being “[k]een to move on, sign the document”.

(10)    On 16 January 2019, Ms Leach and the Commonwealth signed the Deed, settling and bringing to an end the Unfair Dismissal Claim.

(11)    On 5 February 2019, Ms Leach filled out a “Workers’ Compensation Claim Form” and lodged it with Comcare the following day; in that form she foreshadowed providing a “[f]ull statement to come – still being written”; in that form (and in the subsequent statement which was provided on 7 February 2019) she referred to matters relevant to both her Compensation Claim and the Sexual Harassment Claim.

(12)    On 15 November 2019, Ms Leach made a complaint to the Australian Human Rights Commission (AHRC), alleging sexual harassment, sex discrimination and victimisation; in this complaint, her solicitors noted “we contend that the causes of action under the SD Act [which had been set out in the document, being the Sexual Harassment Claim], are not, and cannot, be barred by the Deed” and reference was made to the principles in Grant.

(13)    On 21 November 2019, Ms Leach lodged an amended complaint form, making it clear that her complaint was against both Mr Burston and the Commonwealth.

(14)    On 16 September 2020, the AHRC terminated Ms Leach’s complaint.

21    There was some contest as to the content of communications between the parties both at the conciliation conference and during the course of telephone communications. To the extent relevant, I canvass them below.

D    THE RELEVANT FACTUAL ALLEGATIONS OF MS LEACH

22    There was a wealth of material put forward in very extensive submissions filed on behalf of both parties. Much canvassed in the submissions can be put to one side, however, because the case is a relatively narrow one and is essentially factual going to the state of knowledge of the respective parties.

23    At its heart, Ms Leach, as the party bearing the onus of proof, has to satisfy me in accordance with s 140(1) of the Evidence Act 1995 (Cth) of the factual circumstances relied upon by her to render it unconscientious for the Commonwealth to seek to enforce the wide or general release it obtained in the Deed. If these factual matters are made out, the conduct in enforcing the Deed would, in my view, be unconscientious, and there are no discretionary considerations that would militate against granting relief by way of a declaration. As Mr Moorhouse properly conceded during the course of his helpful and comprehensive submissions, there is no doubt as to the legal effect of the Deed if it is able to be enforced according to its terms. Hence, the dispute as to the entitlement to declaratory relief transformed into a facts case.

24    As the case was refined during the course of the hearing, the factual propositions that Ms Leach asks the Court to accept can be summarised as follows: first, that communications were made to Ms Leach during the course of the conciliation conference which represented that the conciliation (and any resolution emerging from the conciliation) was all about the Unfair Dismissal Claim; secondly, these comments were not the subject of later clarification by the Commonwealth; and thirdly, Ms Leach was told that the consequence of any settlement would be to allow her to agitate the Sexual Harassment Claim if she so wished together with or separately from the Compensation Claim (the latter claim being expressly excluded from any settlement).

25    In this regard, Mr Moorhouse placed particular emphasis upon the following aspects of the evidence:

(1)    At the conciliation conference, Ms Leach raised aspects of the Sexual Harassment Claim, being sexual harassment that she had been subjected to during her employment, and was told by the conciliator, Ms Gates, in the presence of the Commonwealth’s representatives, Ms Mann and Ms Barons, that such issue was separate from whether she was unfairly dismissed. In this regard, it was said Ms Leach had a clear recollection of being repeatedly told during the conciliation conference that the sexual harassment she experienced during her employment was separate from whether she was unfairly dismissed, and that the parties were discussing settling the Unfair Dismissal Claim only. For example, (at T17.8–11, T17.22–4 and T17.35–44) the following evidence was given by Ms Leach:

I need him to be responsible for the whole thing, the unfair dismissal and the sexual harassment, but it was just kept being said to me that, “You’ve got to get your head in the right space. This is all about were you or were you not unfairly dismissed”.

…

I wanted to talk about everything as a whole and they just kept saying about the – you know, “Right now we’re talking about were you or were you not unfairly dismissed”.

…

And you said just then that you were told something like, “Today is about whether or whether [or] not you were unfairly dismissed and the Comcare and the separate bullying”?---Pretty well. I couldn’t talk to them about that, I had to go to Comcare or a private solicitor.

Yes. And, again, who said that last bit to you?---To my best knowledge, Jill, Ms Gates.

Yes. And when something like that was said, did the people representing the Commonwealth say anything in response to dispute that?---No.

(2)    Further reference was made to Ms Mann’s evidence (see T49.1–28 and T51.8–13), including the following exchange (at T51.36–47):

So do you accept that Ms Gates – even if it’s not recorded in your note, Ms Gates said to Ms Leach, and with you present, things like, “Today is about whether or not you were unfairly dismissed”?---Yes, I suppose, yes, that was the focus.

Yes?---I can’t recall those exact words.

Yes. And Ms Leach in some ways, in that opening section, wanted to focus on other parts of the – other things related to – other than .... dismissal; do you agree with that?---Yes.

And Ms Gates directed her away from that and directed her towards the merits and outcome of the unfair dismissal?---Yes.

(3)    Reference was also made to Ms Barons’ evidence (at T58.12–20) of Ms Leach referring to being sexually propositioned by Mr Burston during her opening statement, and her note of the conciliation conference (Affidavit of Ms Barons affirmed 21 January 2021 (Barons Aff) [7]), including:

counselling services as Senator offered her “best f-k” of life, propositioned

26    Mr Moorhouse then submitted that no evidence of either Commonwealth representative contradicted the statements asserted to have been made by Ms Gates at the conciliation conference that any other issue Ms Leach had raised was separate from whether she was unfairly dismissed, or that Ms Leach was told that any settlement would involve settling her claims of sexual harassment. Further, it was submitted that Ms Leach was told during the conciliation conference, in the presence of the Commonwealth’s representatives, that the settlement would allow her to go to a private solicitor or to Comcare in relation to her other issues. In this regard, it was said Ms Leach confirmed in cross-examination that such words had been said to her by the conciliator (at T43.6–9; see also T44.9–11 and T44.42–5). Her evidence (at T43.11–25) was:

So is that true, the very last line, the deed will still allow you to do this?---So, again, ND – not NDA – yes, NDA and all those words, I 100 per cent were – I was allowed to do it. Whether you would want to call it a deed, a settlement, a whatever – NDA, 100 per cent I was allowed to do it. I would not have signed it if I couldn’t have gone further with this. I just know it.

…

There was no deed that Ms Gates would have been talking to you about in the conciliation?---I see where you’re going with that. Yes, the deed was not written. I get that. Yes. So when we speak about the offer, the settlement package, whatever you want to call it, that’s what I’m referring to.

27    Mr Moorhouse pointed to the fact that Ms Mann and Ms Barons gave evidence that they did not recall such words being said, but could not actually remember whether they were said or not (Affidavit of Ms Mann affirmed 21 January 2021 (Mann Aff) [18.1] and T52.24–5; Barons Aff [20] and T60.40–1 (“I don’t recall whether words to that effect were said so I can’t say either way”)). Ms Mann also accepted (at T54.6–8) that it was possible that a general statement was made during the conciliation conference that Ms Leach would be able to bring other claims after settlement.

28    It was further suggested that the evidence establishing that the Sexual Harassment Claim was discrete from the Unfair Dismissal Claim was repeated to Ms Leach by the conciliator, Ms Gates, in her private conversations with the conciliator (at T18.17–27):

And is what you just told his Honour about what you said, did that happen in the separate conversations or in the joint conversation or both?---To my – both. It was, like, said the whole way through but she did cut me off. Like, it was no use talking about all of that.

When you say “all of that” – “no use talking about all of that” – what did you mean?---Well, when I said to Lauren and – I don’t know Catherine but I know Lauren and she knows Donna Fiveash, she knew the whole story. I said, “How can you ladies stand there and allow this to happen? You’re condoning his behaviour.” That’s where I think Jill was, “It’s not about that, it’s about were you or were you not unfairly dismissed”.

29    Mr Moorhouse also pointed to the fact that the Commonwealth subsequently made the Settlement Offer by letter dated 17 December 2019, which focussed on the Unfair Dismissal Claim and the compensation that Ms Leach might receive if that claim was successful. The Settlement Offer was put “in the interests of resolving these proceedings on a final basis” and “to settle this matter” (Ms Leach’s emphasis).

30    Ms Moorhouse also noted that while that Settlement Offer referred to the requirement for Ms Leach to execute a deed in terms acceptable to the Commonwealth, there was no accompanying statement as to the nature of the claims Ms Leach would be required to release (beyond saying that she would be required to discontinue the Unfair Dismissal Claim, and would not be prevented from making the Compensation Claim to Comcare), and no statement that the proposed deed would prevent Ms Leach from bringing any further claims in relation to her employment, including any Sexual Harassment Claim.

E    FINDINGS AND RESOLUTION

31    The High Court recognised in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 that there had been a growing body of research (even a generation ago) that cast doubt on the ability of judges to make accurate credibility findings based on demeanour. As was explained (at 129 [31] per Gleeson CJ, Gummow and Kirby JJ):

Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events.

32    After having the opportunity of hearing from all three principal witnesses, Ms Leach, Ms Mann and Ms Barons, each of which was cross-examined, it seems to me the likely course of events emerges fairly clearly. In reaching my conclusions I have had regard to my impressions of each of the witnesses in giving their evidence, but also to the inherent probabilities that emerge from the whole of the evidence including the contemporaneous notes and the sequence of events as recorded in the documents in evidence.

33    I am conscious of the fact that giving evidence was no doubt a stressful experience for Ms Leach but regrettably, she was not an impressive witness. She was often non-responsive and was defensive and confrontational with the cross-examiner. Moreover, I had the distinct impression that she was, at times, pausing and seeking to fashion her evidence to suit the forensic exigencies as she perceived them.

34    By way of contrast, Ms Mann and Ms Barons were very careful and impressive witnesses who made appropriate concessions. To the extent that their evidence conflicts with that of Ms Leach, I unhesitatingly prefer the evidence of Ms Mann and Ms Barons.

35    One critical aspect of the evidence of both Ms Mann and Ms Barons had a crystal clear ring of truth about it. They both said, based on their usual practice, that if words had been said in their presence which in their view left the impression that following settlement, Ms Leach would be free to pursue the Sexual Harassment Claim, they would have sought to correct those statements. Ms Mann deposed that consistently with the way Ms Leach gave her evidence before me, Ms Leach communicated during the conciliation conference in a way by which she moved “quickly across topics in an unstructured or ‘stream of consciousness’ fashion”: Mann Aff [17.2]. This is entirely consistent with matters relevant to the Sexual Harassment Claim being mentioned by Ms Leach, and efforts being made by the conciliator to bring Ms Leach back to the point of the conciliation conference. But as to the notion something was expressly said by Ms Gates to the effect that Ms Leach was free to bring a Sexual Harassment Claim following resolution with the Commonwealth, Ms Mann said that if there was a suggestion made to that effect (specifically, that any other claim, other than the workers’ compensation claim, would still be available to Ms Leach after a settlement) she would have sought to correct this either immediately or via Ms Gates. As Ms Mann did not do so, her best recollection is that the issue never arose: Mann Aff [18.1].

36    Similarly, Ms Barons explained in her affidavit that in her entire experience of dealing with unfair dismissal matters on behalf of the Commonwealth since 2009, she did not recall any deed agreed to by the Commonwealth that enabled further claims of the nature of the Sexual Harassment Claim to be made: Barons Aff [20]. The only carve-outs were for Comcare claims. To allow the Commonwealth to have some potential further liability for a claim like the Sexual Harassment Claim would be, in the view of Ms Barons, contrary to the purpose of settling the matter for final resolution.

37    Substantially similar evidence to that given in their affidavits was given orally by Ms Mann (at T52.45–T53.7) and Ms Barons (at T59.27–30 and T59.42–T60.11).

38    I accept this evidence of Ms Mann and Ms Barons. Apart from the fact that both witnesses were, in my impression, witnesses of truth, this evidence is inherently likely given the obviously careful way each of Ms Mann and Ms Barons went about their dealings with Ms Leach and the counter-intuitive notion that the Commonwealth would be attracted to resolving only some claims by the release procured from Ms Leach (other than the Compensation Claim, which was expressly excluded). In reaching this conclusion, I have had regard to the fact that Ms Mann and Ms Barons (in giving their affidavit evidence and in cross-examination) were reluctant to deny that things alleged by Ms Leach to have been said may possibly have been said: see [27] above. Rather, as noted above, they gave evidence in terms of being unable to recall or having no recollection. Although this gave me pause when I initially read their evidence in chief, after I had the opportunity of seeing them give evidence, I am entirely satisfied that neither witness is prone to any overstatement, and their reluctance to be definitive was not due to an acceptance that it was more likely than not that something was said, but instead can be attributed to a cautious desire not to overstate their evidence and pretend to demonstrate a definitive recollection of the conciliation conference. If anything, this had the ultimate effect of buttressing their evidence as to their usual practice and what they would have done in the counterfactual (had they been cognisant that Ms Leach had been told or thought she could maintain her Sexual Harassment Claim against the Commonwealth).

39    Having made these comments, there are core parts of the evidence of Ms Leach that I also accept. In particular, as noted above, and consistently with a subjective belief that in signing the Deed she was only settling the Unfair Dismissal Claim, Ms Leach made a claim to Comcare in relation to how she had been treated during her employment with Mr Burston, including her alleged sexual harassment: T28.37–8, T29.32–8 and T34.17–21. Ms Leach said (at T45.35–40) she took this course rather than pursuing other avenues because, inter alia, private solicitors are expensive.

40    Further, I accept Ms Leach’s evidence she believed that making a claim with Comcare was one way of pursuing her Sexual Harassment Claim and the other treatment she allegedly experienced at the hands of Mr Burston.

41    Accordingly, on balance, and notwithstanding the Commonwealth’s submissions to the contrary, I am satisfied that notwithstanding the terms of the Deed, Ms Leach did genuinely (but mistakenly) believe that in signing the Deed, this step would not prevent her maintaining the claims that she wished to pursue, being the Compensation Claim and the Sexual Harassment Claim.

42    To state the obvious, however, this is a necessary but not sufficient basis upon which Ms Leach seeks relief. The objective theory of contract stands in command of the field: Taylor v Johnson (1983) 151 CLR 422 (at 429 per Mason ACJ, Murphy and Deane JJ). Although I am prepared to accept Ms Leach was operating under a genuine misapprehension, her mistake was entirely unilateral and her subjective misapprehensions as to the nature of the bargain she struck with the Commonwealth, without more, are neither here nor there. The inquiry relates to the state of knowledge of both parties concerning the existence, character and extent of the liability in question (as well as the actual intention of Ms Leach): Grant (at 129–30 per Dixon CJ, Fullagar, Kitto and Taylor JJ). Hence, the real question for me in the present circumstances is whether the misapprehensions: (a) were known to be held by Ms Leach by representatives of the Commonwealth; and/or (b) came about by reason of some action or conduct of the Commonwealth which renders the Deed being enforced according to its terms by the Commonwealth as being contrary to conscience.

43    It is here that the fundamental difficulty from Ms Leach emerges. For reasons explained above, I am comfortably satisfied that if something had have been said during the course of the conciliation conference which expressly conveyed to Ms Leach that she could continue to bring a Sexual Harassment Claim (in contradistinction to the Compensation Claim) then this would have been something which would have been the subject of comment, at some time prior to the formalisation of any settlement, by Ms Mann and/or Ms Barons. The fact that there was no such correction leads me to the conclusion that something to this effect was simply not said. For the same reason, I do not think there was anything said by Ms Leach in clear, understandable terms which indicated to Ms Mann and/or Ms Barons that Ms Leach believed that post-settlement she could sue the Commonwealth for the Sexual Harassment Claim. I am fortified in this view because the contemporaneous documents disclose that Ms Mann dealt with Ms Leach in a careful and fair way, conscious of the fact that she was dealing with an unrepresented litigant. Moreover, I am satisfied that at no time after the conciliation conference was: (a) it expressly or implicitly represented by Ms Mann that the consequence of any settlement would be to allow Ms Leach to agitate the Sexual Harassment Claim; or (b) Ms Leach’s misapprehension communicated to Ms Mann in such a way as to put the Commonwealth on notice that she was operating under any mistaken understanding as to her ability to maintain the Sexual Harassment Claim against the Commonwealth.

44    As Sir Owen Dixon emphasised, a party bearing the onus of proof will not succeed unless the whole of the evidence establishes a “reasonable satisfaction” on the preponderance of probabilities such as to sustain the relevant issue (Axon v Axon (1937) 59 CLR 395 (at 403)); and the “facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied” (Jones v Dunkel (1959) 101 CLR 298 (at 305)). Despite Mr Moorhouse, during the course of his able submissions, saying everything he possibly could say to advance Ms Leach’s cause, for the reasons I have explained, Ms Leach has fallen well short of proving, in accordance with s 140(1) of the Evidence Act, the factual premises upon which her claim for declaratory relief is based: see [24] above.

45    Having said that, it is now perhaps understandable why Ms Leach laboured under the misapprehension she did. During the conciliation conference it is clear that she raised a number of complaints which went beyond the Unfair Dismissal Claim. No doubt she was entreated from time to time during the course of the conciliation conference, in general terms, by Ms Gates, to direct her attention to the subject of the conciliation. This is to be expected. Further, I have little doubt something was said about her ability to continue with her Compensation Claim with Comcare. The likely problem is that Ms Leach in her own mind believed that her being able to approach Comcare with a complaint extended to her being able to make the Sexual Harassment Claim (being the very step she later took).

46    This analysis of the evidence makes intuitive sense but is fatal to Ms Leach attaining relief. There is nothing in the material that I have seen which shows departure by the Commonwealth from acceptable standards of fair dealing with Ms Leach or any conduct by which the Commonwealth contributed to any misapprehension that was held by Ms Leach or was aware of it. In those circumstances, the claim for declaratory relief must fail.

F    ORDERS

47    In the circumstances, the orders should be that the answer to the separate question is that Ms Leach does not have an entitlement to a declaration as referred to in prayer 2 of the amended originating application. The consequence of this is that the Deed can be enforced in accordance with its terms and the proceeding against the Commonwealth must be dismissed with costs.

48    During the course of the hearing I formed views as to Ms Leach’s reliability as a witness and her manner of giving evidence and have expressed those views: see [33] and [35] above. In these circumstances, although I do not consider Ms Leach set out to give any false evidence, there are aspects of her evidence I do not accept and a hypothetical observer might reasonably apprehend that if I was to hear evidence from Ms Leach again (which would inevitably be the case if I was to hear the balance of her claim for relief against Mr Burston), I might not be able to bring an impartial mind to the assessment of her evidence. In those circumstances, the prudent course is for the balance of the proceeding to be case managed and heard by another judge.

Associate:

Dated:    2 March 2021