Federal Court of Australia

Rossi v Qantas Airways Limited (No 4) [2023] FCA 1008

ORDERS

THE COURT ORDERS THAT:

1.    The applicant's application for an order declaring her to be a handicapped person within the meaning of O 15 of the County Court Rules of Procedure in Civil Proceedings 1999 (Vic) and for an order declaring void the deed of settlement made between the parties on 29 October 2008 is dismissed.

2.    Failing agreement, the Court will hear submissions as to any other orders that should follow as a result of order 1 and as to costs.

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

Table of Contents

REASONS FOR JUDGMENT

BANKS-SMITH J:

PART A - PRELIMINARY

Introduction

1    On 29 October 2008 the applicant, Sara Rossi, signed a settlement deed (Deed), purportedly bringing to an end a workers' compensation claim that she made against the respondent, Qantas Airways Limited, in 2006. Ms Rossi now contends that she did not have the mental capacity to enter into the Deed. Accordingly, she seeks to have the Deed set aside, in the hope that she can pursue a claim for leave to bring an application under the Australian Human Rights Commission Act 1986 (Cth) against Qantas alleging unlawful discrimination.

2    The claims Ms Rossi seeks to pursue against Qantas are based on events which allegedly occurred between 2001 and 2003. Ms Rossi alleges that Qantas discriminated against her on the ground of sex and engaged in sexually harassing conduct, and discriminated against her on the ground of disability. She claims that such conduct caused her psychological injuries and led her to accept a voluntary redundancy in 2003. As a result of the injuries allegedly suffered at Qantas, Ms Rossi claims that she has been unable to work since 2003, save for a brief period.

3    Under the Deed, Ms Rossi agreed to accept $75,000 in full and final settlement of any claims relating to her employment with Qantas. After signing the Deed, Ms Rossi refused the settlement monies. Ms Rossi accepts that her proposed claim against Qantas can only proceed if the Court finds that the Deed is a nullity.

4    The proceeding in this Court began in 2019 when Ms Rossi made a claim for leave to bring the proposed application against Qantas under the Australian Human Rights Commission Act. The application to set aside the Deed forms part of the same proceeding.

5    On 31 July 2020 Gleeson J ordered that the issue of whether the Deed should be set aside should be determined before any question of leave to proceed against Qantas under the Australian Human Rights Commission Act: Rossi v Qantas Airways Limited (No 2) [2020] FCA 1080. More particularly, Gleeson J ordered that a separate determination was to address the orders sought in 1(a), (b) and (c) of the originating application. The relief by way of proposed order 1(a) relied on duress. That ground was subsequently abandoned by Ms Rossi by amendment to the pleading. The trial of the separate determination was allocated to me, and proceeded with respect to the relief sought in orders 1(b) and (c) only. The remaining proposed orders are reproduced below.

6    It is important to bear in mind what was not the subject of this trial. Ms Rossi does not allege duress, undue influence, or unconscionable conduct with respect to entry into the Deed. She no longer pursues claims against her legal representatives at the time. Rather, in issue is a relatively narrow question as to whether Ms Rossi was a 'handicapped person' under the relevant Victorian County Court rules when she signed the Deed. It was accepted that this Court has accrued jurisdiction to deal with this issue, having regard to the broader subject matter of the underlying proceeding: Treasury Wine Estates Vinters Limited v Pearson [2019] FCAFC 21; (2019) 268 FCR 12.

7    The significance of a decision of this nature must be recognised, even in circumstances where Ms Rossi herself seeks the relevant declaration. As Ms Rossi submitted, capacity to settle is crucial to the integrity of the legal system. As was observed by Bell J in Goddard Elliott (A Firm) v Fritsch [2012] VSC 87:

[560]    … Depriving a person of the right to settle proceedings represents an interference with their civil rights and their personal autonomy in the conduct of litigation. It is likewise an invasion of that right and that autonomy to fail to recognise when a party is mentally ill and therefore lacks the capacity to make proper litigious decisions on their own behalf.

8    Having regard to the principles, and acknowledging the significance of the decision, the issue for determination in this case distils to whether on 29 October 2008 Ms Rossi lacked the capacity to understand the general nature and effect of the Deed, if it had been explained to her. It is not in issue that Ms Rossi bears the burden of proof in this regard.

9    For the reasons set out below, I am not satisfied that Ms Rossi has discharged this onus, and accordingly her application for relief is refused.

10    I acknowledge that for many years Ms Rossi has sought to pursue what she considers to be a great injustice she has suffered at the hands of Qantas. I acknowledge the significance of the proceeding as a whole to Ms Rossi personally, and that as a consequence of this decision her complaints may not be further investigated. The question of capacity in this case has not been an easy one, particularly as the events happened many years ago. But in the end it has been reached after the application of long-standing principles as to assessing the capacity of a person with mental health issues.

Amended originating application

11    In her amended originating application, Ms Rossi relevantly seeks:

(a)    orders declaring her to be a handicapped person within the meaning of O 15 of the then County Court Rules of Procedure in Civil Proceedings 1999 (Vic); and

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

Statutory framework

12    The County Court Rules were made under the County Court's power in s 78(1) of the County Court Act. Although s 78 is referred to in the relief sought, it is only relevant as the source of the power vested in a majority of judges to make the County Court Rules.

13    When Ms Rossi signed the Deed on 29 October 2008, the relevant provision of the County Court Rules was O 15. It was not suggested that other provisions or rules were relevant to the dispute. Order 15 relevantly provided:

PERSON UNDER DISABILITY

15.01    Definitions

In this Order -

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

person under disability means minor or handicapped person.

15.02    Litigation guardian of person under disability

(1)    Except where otherwise provided by or under any Act, a person under disability shall commence or defend a proceeding by his litigation guardian.

(2)    Except where otherwise provided by these Rules, anything in a proceeding that is required or permitted by the Rules to be done by a party shall or may, if the party is a person under disability, be done by his litigation guardian.

(3)    A litigation guardian of a person under disability shall act by a solicitor.

15.03    Appointment of litigation guardian

…

(3)    Where after a proceeding is commenced a party to the proceeding becomes a handicapped person, the Court shall appoint a litigation guardian of that party.

…

15.08    Compromise of claim by a person under disability

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

…

(4)    On the application, evidence shall be given of the date of the compromise, payment or acceptance and the date of birth of the person under disability, and the dates shall be stated in any order approving the compromise, payment or acceptance.

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

14    The County Court Rules were revoked on 22 February 2009 by r 1.03(2) of the County Court Civil Procedure Rules 2008 (Vic), which were themselves revoked on 19 November 2018 by r 1.03(2) of the County Court Civil Procedural Rules 2018 (Vic). However, the rules relevant to this matter are those in force at the time Ms Rossi signed the Deed, that is, the County Court Rules.

15    The proper reading of the text from these provisions is relevantly to the effect that if a person is handicapped, then no claim brought by them can validly be compromised without the approval of the court.

16    As is apparent, Ms Rossi alleges that she was a handicapped person at the relevant time. There was no court approval for entry into the Deed. It follows, on Ms Rossi's case, that the Deed was ineffective in compromising her underlying claim against Qantas and (subject to any other limitations) the claim therefore persists.

17    Qantas, on the other hand, asserts that the claims against it by Ms Rossi were resolved and brought to an end by the Deed, and that Ms Rossi has not met the onus of establishing that the Deed should be set aside on the basis of her alleged incapacity.

Brief chronology

18    This section contains a brief chronology of relevant events, expressed in a relatively uncontentious manner so that the principles may be read in context. Particular events are addressed in more detail in later sections.

19    Ms Rossi commenced employment with Qantas as a flight attendant in 1988, becoming a customer service manager in 2000. She alleges that she sustained a workplace injury between 2001 and 2003.

20    Towards the end of 2002, Ms Rossi commenced receiving treatment from a psychologist, Amanda Allan. Ms Allan gave evidence in this proceeding.

21    It was not until around mid-2006 that Ms Rossi commenced her workers' compensation claim against Qantas. She attended a conciliation session but the claim was not resolved.

22    In around February 2007 Ms Rossi started seeing a new general practitioner, Dr Gillian Singleton. Dr Singleton also gave evidence in this proceeding.

23    In around April 2007 or May 2007 Ms Rossi was referred to Maurice Blackburn Cashburn (MBC) with respect to her workers' compensation claim. She signed a 'no win, no charge' retainer. From September 2007 John McCristal of MBC acted for Ms Rossi.

24    In preparation for trial, Mr McCristal arranged for Ms Rossi to be assessed by a psychiatrist, Dr John Gill. Ms Rossi attended an appointment with Dr Gill and he produced a report dated 27 November 2007. He diagnosed chronic adjustment disorder with mixed anxiety and depressed mood, and accepted that such psychiatric injury had been caused by her employment.

25    On 24 April 2008 Mr McCristal telephoned Ms Rossi about historical medical records he had received, and expressed concern that she had not previously provided him or Dr Gill with her full medical history, which included treatment for depression before the time of the impugned conduct of Qantas.

26    During 2008 Ms Rossi was also assessed by psychiatrists retained by Qantas, Dr Ian Jackson and Dr Paul Kornan.

27    In around September 2008 Mr Rossi attended a second appointment with Dr Gill. He produced supplementary reports. By this time Dr Gill had received additional information about Ms Rossi's earlier medical history and it caused him to change his earlier assessment of her condition and reduce the extent to which he considered it may have been caused by her employment with Qantas.

28    On 9 October 2008 Mr McCristal sent a letter to Ms Rossi notifying her that a settlement conference with Qantas' lawyers, Sparke Helmore, was scheduled for 27 October 2008.

29    The three days of 27 to 29 October 2008 are key in this matter.

30    On 27 October 2008 Ms Rossi met with Mr McCristal and a barrister retained on her behalf, Mr Brent Hutchinson, for a pre-conference discussion.

31    Together they then attended the scheduled settlement conference, which after some discussion was adjourned to 29 October 2008. Ms Rossi spoke to Ms Allan that evening.

32    On 28 October 2008 Ms Rossi went to see Dr Singleton and had phone calls with both Mr McCristal and Mr Hutchinson.

33    On 29 October 2008 the settlement conference resumed at Sparke Helmore's office, and an agreement was purportedly reached. Three documents were produced at this time: a letter from Mr McCristal to Ms Rossi headed 'Your Claim'; a document headed 'Terms of Settlement'; and the Deed. Ms Rossi apparently signed the letter and the Deed. The Terms of Settlement were signed by counsel.

34    After the conference Ms Rossi called Dr Singleton who considered that Ms Rossi was highly distressed. In the ensuing days Ms Rossi apparently remained distressed, and during November 2008 and December 2008 sought to discuss the settlement with Mr McCristal.

35    Ms Rossi alleges from around that time until late 2018 (that is, for some 10 years), she tried to find lawyers to assist her. She says it was not until November 2018 that she found Harmer Workplace Lawyers who agreed to act.

36    On 21 December 2018 a complaint was lodged with the Australian Human Rights Commission, but was terminated because it was lodged more than 12 months after the alleged acts.

37    On 20 September 2019 this action was commenced.

PART B - PRINCIPLES

Preliminary - some examples

38    The issue of capacity may arise in a number of contexts that inform the test that might be applied.

39    In a transactional environment, the issue may arise after documentation has been completed, and a person alleges a signatory did not have capacity to sign. Examples include Gibbons v Wright (1954) CLR 423; and Hanna v Raoul [2018] NSWCA 201.

40    In Gibbons v Wright, the appellant and her two sisters-in-law became owners of land as joint tenants. Subsequently the sisters executed documents converting the joint tenancy into a tenancy in common. After the sisters died, the appellant claimed that these documents were ineffective because the sisters lacked mental capacity. If this were the case the appellant would become sole owner. The court said that the mental capacity required may be described as the capacity to understand the nature of the transaction, when it is explained. It was necessary to show that the sisters were capable of understanding, if the matter had been explained to them, that by executing the mortgages they would be altering the character of their interest in the properties, so that instead of the last survivor becoming entitled to the whole, each of them would be entitled to a one-third share: at 438-439.

41    In Hanna v Raoul, the respondent signed a deed and transfer that had the effect that the appellant would discharge the respondent's mortgage and the respondent would transfer the property to the appellant, subject to a life estate in favour of the respondent. A problem arose after the transfer was completed when the house in which the respondent had continued to live burned down. The Court of Appeal found that it was probable that the respondent, who was elderly and frail, understood the broad operation of the general purport of the transaction encompassed in the deed and the transfer, albeit that he did not understand the legal implications of the creation of a life estate or the conferral of a remained interest. The evidence supported a conclusion that the respondent understood what he wanted to achieve by having someone else pay off his mortgage, and that it included the transfer of title.

42    The question of capacity frequently arises in the context of testamentary capacity, and there is an established body of law in that regard: Banks v Goodfellow (1870) LR 5 QB 549 at 565; Bull v Fulton (1942) 66 CLR 295 at 341-343; and Re Griffith (decd); Easter v Griffith (1995) 217 ALR 284 at 295. The test for testamentary capacity is not necessarily useful by way of analogy in this case.

43    In a litigation context, the question of capacity may arise during proceedings where a person seeks to have a litigation representative appointed, and asserts that they do not have capacity to otherwise proceed. Examples include Vishniakov v Lay [2019] VSC 403; (2019) 58 VR 375; Slaveski v State of Victoria [2009] VSC 596; (2009) 25 VR 160; and Secretary, Department of Health v Southern Cross Directories Pty Ltd [2021] FCA 1592.

44    In Vishniakov the court allowed a plaintiff's application for the appointment of a litigation guardian. The case is cited frequently for Derham AsJ's useful collection of the relevant principles (at [30]). Slaveski similarly concerned the appointment of a litigation guardian, but in the context of a plaintiff who was self-represented. These are the only decisions that the parties were able to uncover that concerned the same provision of the County Court Rules that is applicable in this case, and the assistance offered by these authorities in this case is limited (because both involved a current consideration by the court of the appointment of a litigation guardian; they were not concerned with a particular transaction or a retrospective assessment).

45    In Secretary, Department of Health, the respondent failed to meet the onus of establishing that his capacity was impaired. The Court found that the medical evidence did not rise to a level that supported a finding of an absence of legal capacity, and took into account that communications with the Court evinced an understanding of the nature of the proceedings.

46    Re Erdogan's Application; Erdogan v Ekici [2012] VSC 256; (2012) 36 VR 579 provides an example where a plaintiff satisfied the court that, although in the exercise of its parens patriae jurisdiction the court had ordered that the plaintiff's settlement proceeds be paid into court, the court should in the exercise of that same jurisdiction determine that the plaintiff was no longer a person under disability and was entitled to the return of his property.

47    The question of capacity may also arise in the context of limitation periods and whether a disability might suspend the operation of the relevant limitation period. This was explored by the Court of Appeal in Guthrie v Spence [2009] NSWCA 369; (2009) 78 NSWLR 225. The plaintiff sought to pursue proceedings for assault and negligence alleged to have occurred at the hands of a school teacher when he was a child. The primary judge found that the plaintiff established that he was under a disability that impeded his affairs, being in context those affairs relevant to starting litigation to enforce his causes of action, such that the limitation period was suspended until a certain date, despite exhibiting capacity in other senses. The decision was upheld on appeal.

48    As in the present case, capacity may arise in the context of litigation where a person claims that a compromise of litigation should not have proceeded because of their mental state. Examples include Masterman-Lister v Brutton & Co [2003] 1 WLR 1511; and Goddard Elliott.

49    In Masterman-Lister, the plaintiff compromised litigation for damages for personal injuries in 1987, after receiving advice from counsel and solicitors. Six years later he issued proceedings against his former solicitors for professional negligence relating to the proceedings, and served the writ a further three years later. The plaintiff relevantly sought to reopen the settlement of his earlier claim on the basis that it had never received the approval of the court, and such approval was required under the rules of court because he was a 'patient' within the meaning of the relevant mental health legislation and was incapable by reason of mental disorder of managing and administering his property and affairs. The appeal court upheld the finding of the trial judge on a preliminary issue that the plaintiff had capacity when the action was compromised. The appeal court addressed and dismissed grounds of appeal that included formulating and applying the wrong test for capacity.

50    At the time of Masterman-Lister, there had been no other reported English decision directly concerned with the capacity to litigate and compromise, so the court looked to how capacity was considered in other contexts (at [11]-[14]). This decision continues to provide important guidance and has been applied in this jurisdiction.

51    In Goddard Elliott, the issue of capacity arose in the context of a negligence claim against the respondent's solicitors. The court found that the respondent did not have mental capacity at the time he gave instructions to his solicitors at the door of the court to settle family court proceedings. The proceedings involved complex commercial and taxation issues. The proceedings were settled for a grossly inadequate amount (at [751]). The respondent was known to have mental health problems during the course of the proceedings and it was known to his lawyers that his condition impaired his ability to give instructions (at [719], [723]). The respondent succeeded in his claim against his solicitors in negligence (amongst other claims) for taking and acting on his instructions when he did not have mental capacity, which his solicitors should have known.

52    I have selected the above cases because many are referred to in the discussion of the principles below or in the instructions to the experts. These cases reveal the need to take particular care to identify the nature of the capacity that might be required in any particular context, and the requirement that the court assess capacity, not bound by medical evidence, but having regard also to a range of lay evidence about events over a period of time that might be relevant to the task.

Principles - standard of mental capacity

53    As described by the High Court in Gibbons v Wright (at 437-438), capacity is to be tested by reference to the particular transaction or conduct in which the person proposes to engage:

The law does not prescribe any fixed standard of sanity as requisite for the validity of all transactions. It requires, in relation to each particular matter or piece of business transacted, that each party shall have such soundness of mind as to be capable of understanding the general nature of what he is doing by his participation. … one test of the requisite capacity …[is] to consider whether the person concerned was capable of understanding what he did by executing the deed, when its general purport was explained to him. The principle … appears to us to be that the mental capacity required by the law in respect of any instrument is relative to the particular transaction which is being effected by means of the instrument, and may be described as the capacity to understand the nature of that transaction when it is explained.

54    Their Honours explained and applied that approach as follows (at 438-439):

Ordinarily the nature of the transaction means in this connection the broad operation, the 'general purport' of the instrument; but in some cases it may mean the effect of a wider transaction which the instrument is a means of carrying out: Manches v Trimborn (1946) 174 LT 344, at p 345. In the present case, it was necessary, we think, that the two sisters should have been capable of understanding, if the matter had been explained to them, that by executing the mortgages and the memorandum of transfer they would be altering the character of their interests in the properties concerned, so that instead of the last survivor of the three joint tenants becoming entitled to the whole, each of them would be entitled to a one-third share which would pass to her estate if she still owned it at her death.

(emphasis added)

55    In Masterman-Lister the test was described as issue-specific (at [27]). The standard, as described by Kennedy LJ, is 'related to the individual plaintiff and [their] immediate problem' (at [19]). Chadwick LJ held (at [58]):

The authorities are unanimous in support of two broad propositions. First, that the mental capacity required by the law is capacity in relation to the transaction which is to be effected. Second, that what is required is the capacity to understand the nature of that transaction when it is explained.

56    In Dalle-Molle v Manos [2004] SASC 102; (2004) 88 SASR 193, Debelle J provided useful guidance in the broader context of the capacity to give sufficient instructions to take, defend or compromise litigation. Debelle J observed (at [22]-[27]):

(1)    the question whether a person has the capacity to give sufficient instructions in a litigious matter does not turn on whether or not the person has the requisite mental capacity to make some other legally effective decision;

(2)    evidence of the capacity to make other decisions which have legal consequences and to conduct ordinary day to day affairs would be relevant but must be weighed with other evidence as adduced;

(3)    even if the condition suffered by the person was one which rendered him or her vulnerable to exploitation or at risk of making rash or irresponsible decisions, it did not necessarily follow that he or she was unable to give sufficient instructions, but these matters must be considered with other relevant evidence;

(4)    whether the person has the capacity to give sufficient instructions must be examined against the facts and subject matter of the particular litigation and the issues involved in that litigation. Accordingly, in a complex matter it may be necessary for careful advice and explanation to be given and for there to be time for consideration by the litigant;

(5)    the level of understanding of legal proceedings involves an ability to understand the nature of the litigation, its purpose, its possible outcomes, and the risks in costs which is of course but one of the possible outcomes; and

(6)    the qualification as to 'sufficient' instructions in the relevant rule meant instructions of a quantity, extent or scope adequate for the purpose or object of those instructions, signifying that a person is able, once an appropriate explanation has been given, to understand the essential elements of the action and is able then to decide whether to proceed with the litigation or, if it is a question to agreeing to a compromise of the proceedings, to decide whether or not to compromise.

57    His Honour's observations were referred to by Ward J in A v N [2012] NSWSC 354 at [392]-[397]. In A v N the question, insofar as capacity was concerned, was whether the person referred to as 'E', who suffered from dementia, had capacity to enter into a deed which set out the basis on which the parties agreed to compromise court proceedings which were then on foot. The deed was entered into following a mediation conference attended by E. There was evidence that Mr Moore (counsel) had gone through the deed with E: at [429]. Her Honour relevantly concluded:

[445]    I accept that the critical question is whether E had capacity to enter into the transactions provided for in the March Deed (not whether he had general capacity or testamentary capacity at that time). That capacity is measured by whether E would have understood the nature and effect of the transactions then being contemplated had such an explanation been given to him. By analogy with the authorities in relation to testamentary capacity, the question as to capacity is not whether he in fact understood (though that would be of relevance when considering the allegations of undue influence or unconscionable conduct and the like) or whether he acted in a rational manner in making the decisions that he did, but whether he was capable of understanding had an appropriate explanation been given.

58    In Hobhouse v Macarthur-Onslow [2016] NSWSC 1831, Robb J acknowledged that there may be a question as to what the High Court in Gibbons v Wright meant by the use of the expressions 'when its general purport was explained to him' and 'if the matter had been explained to them'. As Robb J continued:

[423]    …The use of the word 'when' in the first of these expressions tends to suggest that an explanation is required, while the use of the word 'if' in the latter tends to leave open the possibility that the reference to an explanation is hypothetical.

…

[427]    There is nothing in the reports of Ball v Mannin or Gibbons v Wright, or the authorities referred to by the Justices at 438, that suggest that there was any evidence in the particular case that any explanation had been given to the person whose capacity was in question, or that the outcome of the case in any way depended upon the adequacy of that explanation, and what effect it had on the understanding of the person. It would appear that the reference to an explanation in the expression 'capable of understanding, if the matter had been explained to them' was used to describe a level of capacity that must exist if an explanation had been given, not after it has in fact been given. Gibbons v Wright did not turn upon any explanation, let alone an extensive explanation, as suggested by Debelle J.

59    His Honour then observed the following with respect to A v N:

[428]    In A v N, notwithstanding that her Honour had earlier set out aspects of the judgment of Debelle J in Dalle-Molle, as noted above, and also considered the relevance of the evidence in the case of the explanation given to the person whose mental capacity was in question, at [429], Ward J stated her conclusion at [464] in the following terms: 'I am not satisfied that N has discharged the onus of proving on the balance of probabilities that he lacked the mental competence on that date to understand, if the transactions contemplated under the March Deed had been carefully explained to him, what was provided for under that deed and to enter into it' (emphasis added).

See also Hanna v Raoul at [54], [161].

60    A person's capacity can also change from time to time. In A v N it was not in issue that E had dementia but it fluctuated from time to time, such that on any particular day it was possible that he had capacity to understand the relevant transaction: at [22]. In Murphy v Doman [2003] NSWCA 249; (2003) 58 NSWLR 51 the appellant lacked capacity at one court hearing, and had been detained voluntarily and then involuntarily shortly afterwards with a psychotic episode, but capacity was not in issue some 10 or 12 days later.

61    In Goddard Elliott Bell J said:

Mental capacity to settle proceedings

[559]    An important question in the present case is the client's capacity to give instructions and consider advice about settling the proceeding. Those issues were considered by Lord Denning MR in Kirby v Leather [[1965] 2 QB 367]. Applying the same issue-specific test as was approved in Masterman-Lister, his Lordship noted that the plaintiff could appreciate 'something of what had happened to him' (being involved in an accident). However, he 'was not capable of instructing a solicitor properly. He certainly was not capable of exercising any reasonable judgment upon a possible settlement' [at 384]. This passage was cited with approval in Masterman-Lister … as it has been in Australian cases [Owners of Strata Plan No 23007 (2006) 153 FCR 398, 413 [59]].

62    As indicated, there are very few cases that address the particular words of O 15 of the County Court Rules. Applied in this case, those words are to the effect that Ms Rossi bears the burden of establishing that she was 'incapable by reason of mental infirmity of managing her affairs in relation to the proceeding'.

63    One of the relevant statutory tests in Erdogan was r 79.01 of the Supreme Court (General Procedure) Rules 2005 (Vic) which relevantly described a handicapped person as one who was 'incapable by reason of … mental infirmity of managing his or her affairs'. Similarly, in Secretary, Department of Health the Court applied r 9.61 of the Federal Court Rules 2011 (Cth), which when read with the definitions provision, provides that a 'person under a legal incapacity' means, relevantly, a 'mentally disabled person', who is 'a person who, because of mental disability or illness, is not capable of managing the person's own affairs in a proceeding'. In Dalle-Molle, the Court applied r 5 of the (then) Supreme Court Rules 1987 (SA), which was more specific than other provisions. It relevantly defined a 'person under disability' to mean 'any person, who by reason of physical weakness or intellectual or mental impairment or other condition whether temporary or permanent, is unable to give sufficient instructions to take, defend or compromise proceedings'.

64    The variation between these legislative provisions (and the position at common law) is to be carefully kept in mind, bearing in mind that the test for capacity is issue specific. For example, it is apparent that words such as 'managing affairs' will take their content from context. In Erdogan, it was said that 'affairs' takes its meaning from the language of the relevant provision, and refers to the beneficiary's property and their financial affairs. The beneficiary must demonstrate the capacity to make decisions in relation to his or her property and financial affairs (at [71]). And so '[t]o evaluate capacity, the nature of the responsibilities and transactions that management and administration of the beneficiary's property and moneys will entail, both at present and into the future, needs to be understood' (at [73]). Evaluating capacity in those circumstances might require consideration of many processes, information and risks (at [73]-[75]). The focus of the assessment of capacity in the context of the compromise of litigation must be narrower. In A v N, for example, although there was litigation on foot, Ward J noted that the question of capacity did not relate to the conduct of litigation, nor to testamentary capacity, but to whether E had the mental capacity to enter into the settlement deed, containing as it did various agreements as to the disposition of property interests (at [401]).

65    With that caution in mind, I consider that in this case the words 'managing her affairs in relation to the proceeding' as used in O 15 direct attention not to a broad range of issues and responsibilities, but to the compromise of Ms Rossi's proceeding against Qantas by the Deed, requiring a similar approach to that adopted in Gibbons v Wright and A v N. This is expanded upon at [70]-[74] below.

Role of expert and lay evidence

66    Many of the cases that address mental capacity reinforce the principle that it is for the judge to decide, on the basis of the totality of the evidence, both lay and expert, whether the particular legal test for incapacity has been satisfied. It may be that lay evidence may be more compelling than retrospective expert medical evidence. Some of those cases are in the testamentary capacity category: Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 at [65]; Drivas v Jakopovic [2019] NSWCA 218; (2019) 100 NSWLR 505 at [52], [65]-[67]; Croft v Sanders [2019] NSWCA 303 at [86], [128]; and Starr v Miller [2021] NSWSC 426 at [462], [487]-[489] (upheld on appeal in Starr v Miller [2022] NSWCA 46).

67    The principles were also discussed more generally in Guthrie v Spence:

[194]    That Professor Quadrio's reports do not address the ultimate question posed by s 11(3)(b) is by no means fatal. The task of deciding whether a plaintiff was under a disability within the meaning of s 11(3)(b) is not the sort of matter that is capable of being solved by medical evidence alone, and there are limits on the assistance a judge can derive from medical evidence. In performing that task, medical evidence can sometimes be of great assistance in deciding whether a person has been suffering from an impairment of his or her mental condition. However, even that element of the definition could in some circumstances be proved by lay evidence, of enough instances of aberrant or inadequate behaviour. Medical evidence about the way in which a particular mental condition manifested itself could also be of assistance in concluding that it was by reason of an impairment of the plaintiff's mental condition that he or she was impeded in management of affairs in relation to the cause of action. Again, however, even that element could in some circumstances be proved by lay evidence, particularly when the impairment of mental condition was gross.

[195]    Even when medical evidence is available that bears upon whether a person had capacity, for some legal purpose, it is frequently expressed in terms appropriate for a medical diagnosis. Expert evidence can be very helpful in identifying the circumstances from which the diagnosed condition arises, and how it manifests itself in the patient's life. But the legal test for incapacity that is applicable in some particular litigious circumstance is usually not expressed in terms of medical diagnosis. It is for the judge to decide, on the basis of the totality of all the evidence, both lay and expert, whether the particular relevant legal test for incapacity has been satisfied. In Re Estate of Griffith (Dec'd); Easter v Griffith (1995) 217 ALR 284 at 295, Kirby P said, concerning testamentary incapacity:

In judging the will propounded, and the challenge to it, the court must consider all of the facts proved which are relevant to the testamentary capacity of the testator. It must not be deflected into a consideration of medical evidence, still less of jargon, as to whether particular conditions such as 'delusion' or 'paranoia' have been established.

Though these remarks were made in a dissenting judgment, they are a correct statement of principle. The same applies concerning s 11(3)(b).

[196]    The need for more than medical evidence to be taken into account in deciding whether incapacity has been established has been recognised, in litigious contexts outside that of limitations, in Kerr v Badran [2004] NSWSC 735 at [48]-[50]; Revie v Druitt [2005] NSWSC 902 at [34], Ric Developments Pty Ltd (t/as Lane Cove Poolmart) v Muir (2008) 71 NSWLR 593 at 598 [22], 603-4 [48] and Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 at [65].

[197]    Deciding whether a particular plaintiff's ability to deal with the practical tasks of initiating litigation has been impeded is often a matter of inference rather than something proved by direct evidence. It could not be expected that the ordinary skill and training of a medical practitioner would inform them of the nuances of the test for disability that s 11(3)(b) poses, and here Professor Quadrio was given no help in trying to grasp them. Further, the question of whether a person has been substantially impeded in the management of his or her affairs in relation to the cause of action is a mixed question of fact and law, because it involves an evaluation of whether such impediments to management of affairs as have been shown to exist amount to the plaintiff being 'substantially impeded'. The evaluative element in making that decision is one for the judge alone. That is why Professor Quadrio's report by itself would not have been enough to establish the disability.

[198]    Where the ultimate issue for determination by a court involves a pure question of the existence of a medical condition, it may be appropriate and inevitable that an expert will address the ultimate issue directly. Where, as here, the ultimate issue involves other considerations, it will often be inappropriate to expect (or even invite) the expert to address that issue.

PART C - INTRODUCTION TO ISSUES AND WITNESSES

Summary of respective cases

68    Although pleaded in a somewhat broader manner, Ms Rossi's case as submitted by her counsel is that between 1.00 pm and 2.00 pm on 29 October 2008, being when she signed the Deed, she did not have the mental capacity to understand the nature of the transaction she entered into (reply submissions, para 12). Her ability to understand the consequences of signing the Deed were 'affected by her severe depressive mood causing her to lack confidence to refuse to sign the Deed or to process the information provided by her lawyers (if given to her)' (reply submissions, para 48). It is not her case that she lacked capacity at all relevant times, but at that particular time. She asserts (in her reply submissions, para 22(r)) that her conduct even two days beforehand is not relevant to that assessment. Her case is that when she was presented with the Deed at the 29 October conference, parts of which she read, she did not understand how the Deed was to her benefit, and that she signed it to get out of the situation.

69    Qantas' case is that Ms Rossi's own evidence is sufficient to establish that she actively participated in the settlement process, understood it and decided to sign the Deed, being aware of the consequences of not doing so. It contends that while she may regret that decision, it is not a case of incapacity. Qantas submits, however, that it would be sufficient for the Court to find that Ms Rossi has not proven that she was unable to understand the Deed even if it had been explained.

The approach to capacity

70    As indicated, central to this case is whether Ms Rossi lacked the capacity to enter into the transaction provided for by the Deed, measured by whether she would have understood the nature and effect of the transactions then contemplated if an explanation had been given to her: Gibbons v Wright.

71    Ms Rossi was involved in court proceedings to seek a monetary amount by way of benefits. It is sufficient that she had capacity to understand something of her prospects of success, that any claims against Qantas would be resolved and come to an end if a settlement was achieved, that there would be no necessity for a trial, and that she would be paid the relevant sums (the terms of the Deed are addressed below at [209]-[215]).

72    In this case it has not been suggested by Ms Rossi that she did not have capacity to manage the proceedings as a whole. Nor was there any contemporaneous evidence of any suggestion from treating doctors, lawyers or others that the appointment of a litigation guardian should be considered at any stage.

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

74    This was a compromise entered into during a three day period that had as its focus an attempt to mediate the dispute, a period involving Ms Rossi, her lawyers and lawyers for Qantas. The evidence of what occurred in those days is relevant to ascertaining and understanding the circumstances in which Ms Rossi signed the Deed, including ascertaining what she knew at the time about the prospects of her claim against Qantas and the purpose of the mediation conference. Having said that, it is the events of 29 October 2008 that are central to the retrospective assessment of Ms Rossi's capacity.

The witnesses

75    Ms Rossi gave evidence and was cross examined. She tendered six affidavits sworn between 12 February 2020 and 26 February 2021.

76    Evidence was also given on Ms Rossi's behalf by Dr Singleton and Ms Allan, both of whom treated her prior to and during 2008.

77    Dr Singleton provided affidavit evidence and a report and was cross examined. Qantas accepted that Dr Singleton was entitled to give expert evidence in her field as a general practitioner, but not as though it were expert psychiatric evidence.

78    Ms Allan provided affidavit evidence and a report and was cross examined. Ms Allan's notes were the subject of a subpoena and were produced, albeit that some were produced after she gave evidence. Ms Allan was called by Ms Rossi as an expert and lay witness. Qantas submitted that no weight should be given to her evidence (to the extent it purported to be expert evidence) on the basis that she was not suitably qualified to give the evidence she purported to give, and objected to it more generally on the basis that she lacked independence and her evidence was said to display collusion with Ms Rossi.

79    Ms Rossi also called Dr Enrico Parmegiani, a psychiatrist who provided a number of reports and was cross examined. Dr Parmegiani consulted with and assessed Ms Rossi for the purpose of this proceeding in October 2020. He was also provided with copies of her affidavits and medical reports. He was not Ms Rossi's treating psychiatrist. Qantas submitted that Dr Parmegiani's reports should be rejected or given no weight for a number of reasons, including because they were infected by his consultation with Ms Rossi in 2020 and strayed into the inadmissible territory of attempting to determine her subjective state of mind on 29 October 2008.

80    Qantas called two lay witnesses, Mr McCristal and Mr Hutchinson, both of whom were present at the settlement conferences on 27 October 2008 and 29 October 2008. Both provided affidavit evidence and were cross examined.

81    Qantas also relied on an affidavit of Talia Firth. Ms Firth is a lawyer from Ashurst who represents Qantas in this matter. The affidavit was the means by which a number of documents were to be tendered. As discussed further below, I have not admitted Ms Firth's affidavit in full, but I have admitted particular documents attached to the affidavit upon which there was cross examination or which were referred to in the written submissions.

82    Qantas called Dr Leonard Lee, a medico-legal psychiatrist. Dr Lee did not consult with Ms Rossi. He relied upon and commented on Ms Rossi's affidavits and documents provided to him in order to give what he described as a qualified written opinion dated 25 November 2020 as to her capacity. Ms Rossi objected to the admissibility of Dr Lee's opinion as a whole, submitting that it did not comply with this Court's legislative and practice note requirements; its format and presentation were confusing; and Dr Lee's reasoning process was opaque.

83    It will be necessary to return to these various objections to the evidence.

Conduct of trial

84    The hearing of evidence in this matter was delayed and rescheduled to accommodate certain requests by Ms Rossi as to the manner in which she might give her evidence. It is not necessary to detail the course of applications, communications and evidence in that regard. In the end, Ms Rossi gave evidence by video link. As COVID-19 directions were in place at least during parts of the proceeding, the trial as a whole proceeded by video link and this approach was coordinated and agreed to by the parties and counsel. However, it is important to note the additional cooperation between Ms Rossi and Qantas as to other steps that were implemented. Relevantly, a real time transcription service was utilised so that Ms Rossi could read questions as they were asked of her, rather than only hearing them. Short breaks were provided to Ms Rossi upon request. Twice in closing submissions Ms Rossi submitted that those adjustments were required to allow her to participate in this trial given her condition. By that submission Ms Rossi seemed to suggest that the Court accepted that such adjustments were required (ts 495, reply submissions para 21(k)). That is not the case. The fact that these steps were put in place did not indicate any acceptance of any particular medical need or condition, especially insofar as the events of 2008 were concerned. No concessions were made by Qantas in cooperating in this process and no determinations were made in that regard by the Court. Putting those steps in place by consent was a simple and effective way of ensuring the trial would proceed in a manner that Ms Rossi considered would enable her to fairly give her oral evidence.

PART D - EVENTS

85    I turn now to examine the events relevant to Ms Rossi's capacity at the time of signing the Deed. Some of the detail that she sought to present was not relevant to resolving the issue of capacity. I have not attempted to set out all of Ms Rossi's evidence, but instead gather below the evidence about key events and evidence that I have found useful in assessing the reliability and weight of competing evidence relevant to the question of capacity.

Formal claims against Qantas culminating in writ

86    Ms Rossi was employed by Qantas from 1988 until she applied for and received a voluntary redundancy package effective 1 July 2003.

87    In August 2006 Ms Rossi filed a worker's claim form under the Accident Compensation Act 1985 (Vic), claiming that she had been injured by way of being victimized at work and not given appropriate feedback and support. She claimed the injury was caused by personal comments and remarks not relevant to her job.

88    After investigating the claim, Qantas rejected it in September 2006.

89    Ms Rossi then requested conciliation. Ms Allan provided a report for the purpose of the conciliation conference.

90    The conciliation conference was conducted in December 2006 but was unsuccessful, the officer concluding that she was satisfied that there was a genuine dispute as to the liability to make or continue to make weekly payments and payments of compensation.

91    On 23 July 2007 MBC served an application for compensation on Qantas. On 19 October 2007 a writ was issued by Ms Rossi against Qantas in the County Court of Victoria claiming weekly payments of compensation from 1 July 2003 onwards together with 'medical and like expenses associated with the injury'.

92    To paraphrase, Qantas denied liability in its defence on the basis that it was not satisfied that Ms Rossi's injury arose out of the course of her employment as required by the Accident Compensation Act, and nor was it satisfied that her employment was a significant contributing factor to the claimed injury. It contended that due to the time that had elapsed the claim was precluded by s 103(5) of the Accident Compensation Act.

93    The dispute was apparently listed for hearing in November 2008.

MBC engaged to act

94    Mr McCristal deposed that he first consulted with Ms Rossi in around July 2007 at the office of what became MBC.

95    Mr McCristal was admitted to practice in 1996 and had worked at the law firms Slater and Gordon and Maurice Blackburn. In 2001 he acquired the business of MBC and he was the principal solicitor of that firm at the time of the relevant events. He has specialised for many years in workplace stress claims.

96    Mr McCristal recalled from his initial meeting with Ms Rossi that she was articulate, and that based on her instructions he thought she had a reasonable workers' compensation claim against Qantas.

97    Mr McCristal referred to a letter of advice of 23 July 2007. The letter was not written by Mr McCristal, but by a colleague, Thierry Auffray (who had met with Ms Rossi before Mr McCristal assumed conduct of the matter). It was headed 'Your WorkCover Claim'. In it Mr Auffray confirmed Ms Rossi's instructions that she sustained a stress related injury in the course of her employment; that the self-insurer had rejected her claim for weekly payments and medical and like expenses; and that the matter did not resolve at conciliation. It then provided what appears to be standard form information about rights under the Accident Compensation Act. As to injuries occurring after 20 October 1999, it said that injuries may entitle the worker to: weekly payments for incapacity; reasonable medical and like expenses; lump sum compensation for non-economic loss upon medical assessment; and certain common law damages for negligence subject to there being a 'serious injury' (definition provided).

98    The 23 July 2007 letter concluded:

We confirm our advice that you have reasonable prospects of success of challenging the self insurer's decision to reject your claim.

We confirm your instructions to [issue] proceedings in the County Court challenging the insurer's decision to reject your claim for compensation.

We confirm that we are prepared to take your case on a no win/no costs basis. This means that in the event that [you] are unsuccessful in obtaining compensation, we shall not render you an Account for our professional charges.

We advise that it is our view that your prospects of bringing a Common Law claim or Negligence claim against your employer is risky and difficult. In this regard you would need to demonstrate before the Court that the employer should have [reasonably] foreseen that you would develop a psychological/psychiatric injury as a consequence of their actions.

In the circumstances we do not believe that you have reasonable prospects of success of bringing a Common Law Claim or Negligence claim against your employer.

If you disagree with our advice it will be necessary to obtain an opinion from a Barrister and the costs to obtain such an opinion will be between $750.00 and $1,000.00.

99    Ms Rossi also signed a standard 'no win - no charge' costs agreement letter dated 27 July 2007, signed by Mr McCristal on behalf of MBC.

100    As noted, on 23 July 2007 MBC served on Qantas a copy of an application for compensation on behalf of Ms Rossi, describing the injury as anxiety, depression and post-traumatic stress disorder.

101    On 6 September 2007 Mr McCristal wrote to Ms Rossi informing her that MBC had arranged a medical examination for 20 November 2007 with Dr John Gill, a forensic psychiatrist.

102    On the same date Mr McCristal sent a separate letter to Ms Rossi, which relevantly referred to a meeting with Ms Rossi that day and stated that: her medical records had been requested from her 'treaters'; her file had been requested from the insurer (presumably Qantas); once a claim was accepted they would advise Ms Rossi as to the prospects of obtaining a serious injury certificate and bringing a negligence claim; and a brief had been sent to a barrister to draw a statement of claim and issue proceedings. It also informed Ms Rossi that Qantas had arranged for her to be assessed by Dr Jackson in relation to her claim for permanent impairment benefits.

Psychiatric assessments

103    Dr Gill provided a psychiatric report dated 27 November 2007. As mentioned above, he opined that, accepting the history of discrimination and harassment reported by Ms Rossi, her psychiatric injury was caused by her workplace. Dr Gill rated her (applying the 'American Medical Association Guides to the Assessment of Psychiatric Impairment') as having an overall permanent psychiatric impairment of 40%, with a 100% level of impairment for industrial purposes.

104    Dr Gill recounted in his report that Ms Rossi had been treated for depression prior to the alleged workplace conduct by Qantas. He recounted that Ms Rossi disclosed to him that she had experienced an episode of anxiety and panic in 1999, had a period of stress some 15 years earlier, and that nine years earlier had seen a general practitioner who prescribed her antidepressants for a short time.

105    During January 2008 Qantas' lawyers issued subpoenas to a number of doctors and medical centres seeking production of documents relating to Ms Rossi's medical history. One of the subpoenas was directed to a Dr Halliday.

106    Sometime in early 2008 Ms Rossi was also assessed by Dr Jackson, as had been anticipated. He provided a report dated 27 February 2008. He had previously assessed Ms Rossi in 2006. Dr Jackson stated that it was very difficult to make a satisfactory psychiatric diagnosis of Ms Rossi, but the most appropriate formal diagnosis remained that of a major depressive disorder with associated anxiety and specific phobias.

Change in the psychiatric assessments

107    Mr McCristal subsequently also obtained Dr Halliday's notes, and this caused him some concern, as they apparently referred to Ms Rossi's having a history of treatment by psychiatrists.

108    On 22 April 2008 Mr McCristal provided those notes to Dr Gill, asking Dr Gill to advise whether they changed his earlier opinion.

109    On 24 April 2008 Mr McCristal wrote to Dr Gill confirming a further appointment for Ms Rossi with him.

110    Also on 24 April 2008, Mr McCristal drafted a letter to Ms Rossi in which he set out his concerns about information within Dr Halliday's notes that referred to Ms Rossi being on anti-depressant medication since 1996, and being referred to a Dr George (a psychiatrist). Mr McCristal said he read from Dr George's notes that Ms Rossi had many sessions with him between 1996 and 2000. The notes also referred to other medical treatment over a five year period from a Dr McCafferty (also a psychiatrist). There was a report from Dr George amongst the materials. Mr McCristal expressed concern that Dr Gill would change his opinion if those materials were put to him, and that Dr Gill would say that the history provided by Ms Rossi to him was inaccurate, so calling into issue her credit.

111    The letter stated:

We refer to this matter and advise that we are still waiting on the notes of Dr Altamat.

We confirm that the Defendant has subpoenaed the notes of Dr Ann Halliday, which refer to you commencing anti depressant medication in July 1996. The notes also refer to you being referred to Dr George. Once the Defendant inspects the records, it is likely that they will subpoena the records of Dr George.

Having read the notes of Dr George, I am extremely concerned, given the number of sessions that you had with him over the period 1996 to 2000.

Once the material is put to Mr Gill it is likely that he will change his opinion, based on the past psychiatric history that you gave him. In this regard, he is likely to find that the history provided was not at all accurate. This may lead to your credit being called into issue in any future trial.

We recommend that the matter be referred to the Medical Panel. The advantage of this tactic is that you will not be subjected to cross examination. In the event that you were subjected to cross examination, it would be likely that the Defendant's Barrister would ask you to explain to the Court why you provided such a totally inaccurate history to both the Defendant's Psychiatrist, Mr Jackson and to Mr Gill.

We also note that there is a medical report from Dr John Isles in the clinical notes of Ann Halliday. Dr Isles refers to you having been treated for five years with Lawrence McCafferty. Please provide instructions in relation to this aspect of your treatment.

A report from Dr George is also present in the clinical notes. It is likely that the Defendant will subpoena this material.

112    Whether this letter was sent to Ms Rossi is in issue. Two copies were before the Court, one of which has a line through it with the note 'don't send'. Mr McCristal did not claim to recall the particular circumstances as to why there were two copies of the letter. He said that he believes that the first copy of the letter was sent to Ms Rossi and the second was endorsed to avoid duplication. However, he said that if it were not sent, then that would have been because he had spoken to Ms Rossi over the phone about the contents of the letter and so there was no need to send it.

113    Ms Rossi accepted that there was a telephone conversation between her and Mr McCristal on 24 April 2008 about her historical records. Her affidavit evidence was to the effect that Mr McCristal said that he had received her records from Dr Halliday and that they contained various letters from practitioners she had consulted in the 1980s and 1990s, and that he said it appeared that she may not have given him her full history of depression. Ms Rossi said she told him that she didn't know what he was talking about, and that she had told Mr Auffray about her ex-partner and son and answered all questions put to her. Ms Rossi denied under cross examination that Mr McCristal raised with her during this conversation any concern he might have had about what Qantas might do with knowledge of Ms Rossi's past medical history. However, she knew he had concerns about whether she had been 'lying' about her medical history 'because he had raised them on the 24th'.

114    According to her notes, Ms Allan had a telephone conversation with Ms Rossi on 5 May 2008. Ms Allan's notes of that meeting include this extract:

John (lawyer)    - will still proceed

- concerned about what Qantas will try to do (to Sara)

- wondered why Sara has been depressed so often

115    Ms Rossi says she was diagnosed with cancer in mid-2008 and required major surgery. She said that she told Mr McCristal about this on or about 16 July 2008, and that it was the last time she spoke to him before the conference.

116    On about 17 July 2008 Ms Rossi was assessed by Dr Kornan at the request of Qantas, who produced two reports, dated 22 July 2008 and 30 July 2008. Dr Kornan's first report referred to a more detailed history of depression dating back to 1986, and the fact that Ms Rossi had been treated by psychiatrists over the course of a number of years. She had been treated by Dr George, for example, for three or four years in 1997 until the beginning of 2000, every five or six weeks. Dr Kornan's second report referred to additional medical evidence received, including Dr Jackson's report and records from Dr Stringer, and concluded that the more evidence he saw, the more tenuous it appeared to him that her current difficulties arose from Qantas. I interpolate to observe that the history set out in the reports is considerably more detailed than that that set out in Dr Gill's first report.

117    Mr McCristal also received a copy of the report prepared by Dr Jackson dated 25 June 2008. Dr Jackson stated, amongst other things, that he had received additional documentation which was consistent with a diagnosis of depressive illness that predated the events at Qantas, and which caused him to conclude that her psychiatric and psychological state predated her work with Qantas. This report was provided to Dr Gill on 22 August 2008, with a request that Dr Gill provide comments on it.

118    Dr Gill provided a supplementary report dated 15 September 2008. Ms Rossi apparently also attended an appointment with Dr Gill on that date.

119    Dr Gill received additional materials for the purpose of the supplementary report, including medical records and reports for the period 1991 to 2000 addressing Ms Rossi's mental health. These included clinical notes from Dr Halliday, a report from Dr Isles from 1991, a report from Dr McCafferty from 1993; various letters from Dr Stringer, including to Dr Halliday; a letter from Mr de Jong from 2000 and letters from Dr George from 1998 and 2000. I note that Dr Gill refers in a further report to each of Dr Isles, Dr McCafferty, Dr Stringer and Dr George as psychiatrists. Mr de Jong is described as a psychologist. Dr Gill also referred to Dr Jackson's report of 25 June 2008.

120    Dr Gill re-assessed his earlier opinion, stating the following in his supplementary report:

… However, in contrast to my previous assessment, I must conclude that on the basis of the extensive documentation which I have seen subsequently and which outlines Ms Rossi's pre-existing psychiatric problems, it is not possible to attribute the bulk of her psychiatric symptoms to work-related factors at Qantas between 2001 and 2003. However, in view of the fact that there has been significant deterioration in her mental state since 2001, as evidenced by the documentation from Ms Allan, it is my view that the work-related factors have made a significant, albeit minor, contribution to the causation of her current Chronic Depressive Disorder.

It should be noted that apparently Dr Jackson had not seen Ms Allan's documentation prior to preparing his report dated 25 June 2008.

I estimate that the likely work-related component of Ms Rossi's psychiatric impairment is 5%. In terms of a broader percentage impairment assessment than that, using AMA 4th Edition criteria, and taking into consideration the diagnostic information, the degree of pain and suffering and the social, domestic and industrial affects of Ms Rossi's condition, I would consider that for industrial purposes she has a 12% level of impairment attributable to work-related stress injury.

…

The documentation which you have provided provides extensive evidence of psychiatric opinions from doctors who have treated Ms Rossi since the early 1990s for significant psychiatric difficulties.

…

Given that these problems have predated the stress she experienced at work from 2001, I must alter my opinion in relation to the causation of Ms Rossi's psychiatric condition. Although I have not altered my view that she remains severely impaired, I consider that the work-related contribution to her current condition is a relatively minor factor in the causation of her depressive illness, in comparison to the pre-existing factors …

121    On 18 September 2008 Mr McCristal provided a bundle of medical reports to Qantas' lawyers from the period 2003 to 2008.

122    On 10 October 2008 Dr Gill provided a second supplementary report specifically addressing Dr Jackson's June 2008 report.

123    Dr Gill wrote:

Dr Jackson has provided a thorough analysis of the documentation and essentially he has concluded that Ms Rossi's psychiatric condition represents a depressive illness and personality features which pre-existed her work-related problems at Qantas and that her more recent presentation does not appear to differ significantly from her condition as depicted in the documentation prior to the alleged work-related stress. …

In his review of the documentation, presumably Dr Jackson did not have available to him the material you have provided to me from Ms Rossi's psychologist Ms Amanda Allan. Ms Allan has indicated that she has known Ms Rossi for a period of five years, from August 2001 to October 2006. She considered that Ms Rossi was suffering 'ongoing severe depression and anxiety, with associated somatic and social dysfunctioning'. She noted that Ms Rossi's reports of having been alienated and victimised at her workplace.

She concluded her report dated 30 October 2006 with the statement: 'It has been disturbing to witness the psychosocial demise of Sarah's functioning since first meeting her in late 2001, and I endorse every effort for her to receive acknowledgement for what she has suffered in the event of any absence of appropriate and respectful organisational support.'

It would therefore appear from Ms Allan's documentation that Ms Rossi has experienced a significant deterioration in her mental state and her level of functioning since the onset of her work-related stressors.

It is on the basis of the information provided by Ms Allan that I have formed the opinion that although for the reasons outlined by Dr Jackson, Ms Rossi's psychiatric condition is very largely attributable to pre-existing depressive illness and personality factors, there is a minor contribution attributable to the work-related stress factors between 2001 and 2003. I estimate that Ms Rossi has a psychiatric impairment of 5% attributable to work-related causal factors and 35% impairment attributable to non work-related factors.

(original emphasis)

124    Whilst disclosure of some of the material in these extracts will no doubt be upsetting for Ms Rossi, I have included them for a number of reasons. First, as will become apparent, the reduction in Dr Gill's assessment of the percentage of impairment attributable to work place stress was critical to the advice given by Mr McCristal and Mr Hutchinson to Ms Rossi to settle her claim. Second, Ms Rossi knew about the reduction in that assessment prior to 29 October 2008, and both the reduction and the suggestion that she had initially failed to disclose her full history to Dr Gill caused her considerable concern. Third, (as I find below) Ms Rossi knew that Qantas might take advantage against her interests of the differences in her given history reflected in the reports. Fourth, Dr Parmegiani and Dr Lee were provided with copies of the reports of Dr Gill and Dr Jackson, amongst other materials.

125    For completeness I note that none of Dr Gill, Dr Jackson or Dr Kornan gave evidence and their reports were not admitted as evidence of the truth of the matters asserted or the truth of the matters about which opinions were expressed.

Other events prior to the settlement conference

Letter informing Ms Rossi about the settlement conference

126    On 9 October 2008 Mr McCristal wrote to Ms Rossi, stating:

We refer to previous correspondence and advise an informal settlement Conference has been arranged for Monday 27 October 2008 @ 2.00pm - Sparke Helmore Lawyers, Level 40, 600 Bourke Street, Melbourne.

Your attendance is required on the day.

The purpose of the Conference is to try and reach agreement over settlement of your claim. The Defendant's Solicitor will also be in attendance.

We have briefed Mr. Brent Hutchinson to appear on your behalf at the Conference and we request that you attend Owen Dixon West, 2nd Floor, Room 223, 525 Lonsdale Street, Melbourne at 1.00 pm prior to conference to meet with Mr. Hutchinson to discuss [your] claim.

Our John McCristal will also be in attendance.

127    Ms Rossi did not deny receiving the letter.

Ms Rossi's attempts to contact Mr McCristal

128    Ms Rossi said she attempted to contact Mr McCristal by calling his office on or around 22 September, 13 October and 24 October 2008. She suggested that Mr McCristal had barred his staff from speaking to her. She also said that scheduled meetings with Mr McCristal on 24 September and 1 October 2008 were cancelled.

129    Mr McCristal said that he did not recall being told that Ms Rossi had called to speak to him and did not recall whether any meetings were cancelled or why, but he denied any allegation that he deliberately avoided speaking with Ms Rossi or answering telephone calls.

130    What is apparent, however, is that the there is no evidence that Mr McCristal provided additional advice to Ms Rossi about her claim prior to 27 October 2008, apart from that already referred to.

Appointment with Ms Allan 21 October 2008

131    According to Ms Allan's notes, on 21 October 2008 she had a consultation with Ms Rossi. Ms Allan noted:

Sara distressed with the uncertainty of processes heading into Monday (mediation with Qantas Spark & Helmore (pre-court).

Appointment with Dr Singleton 22 October 2008

132    On 22 October 2008, Ms Rossi attended an appointment with Dr Singleton. According to Dr Singleton's notes, the appointment covered medical matters in addition to 'anxiety with depression'. Dr Singleton's note of the appointment states:

remains v distressed re being unable to contact John. feeling vulnerable / frustrated. counselled. increasingly concerned about outcome of case fearful that she will not be believed or that she will be unable to express the depths of the impact that her work injury has had on her life. fearful about being judged. counselled at length. review after conciliation hearing on Monday.

…

27 October 2008 pre-conference meeting (Monday)

133    Ms Rossi attended the scheduled pre-conference meeting with Mr McCristal and Mr Hutchinson at Mr Hutchinson's chambers. Ms Rossi said that it lasted for about 15 to 20 minutes because Mr McCristal was running late. Ms Rossi had by then received copies of the reports of Dr Jackson and Dr Kornan.

134    In her affidavit evidence, Ms Rossi said that at the meeting she was shown the medical reports of Dr Gill dated 15 September 2008 and 10 October 2008, which referred to the circumstances of her employment causing only 5% of her workplace in injury. She said that she did not understand how Dr Gill had changed his opinion. She told Mr McCristal that she did not agree with the report and asked him to explain further. Mr McCristal said that Dr Gill had changed his percentage rating due to her medical history.

135    Ms Rossi said under cross examination that she was not given Dr Gill's reports at the meeting and was only shown the back two pages where he had changed his percentage (this detail about seeing only the last two pages was not referred to in her six affidavits). She said she recalled that Mr McCristal read out part of the report relating to the percentage change and to the diagnosis, and that she believed the diagnosis was inaccurate and inconsistent with previous reports that she had received.

136    She said that when Mr McCristal read out Dr Gill's changed diagnoses she used words such as 'these reports are a lie, they are not accurate' and 'this cannot be right'. She said that she was 'shocked' by Dr Gill's change to his opinion, although she accepted that she had already known by then from Dr Jackson's report that she felt as though she was on trial regarding her medical history and life events. She also accepted that she knew by then that Dr Kornan was of the view that her pre-existing medical history was the cause of her medical conditions, and not Qantas, and said she had tried to talk about this with Mr McCristal. She said it was 'a surprise to me that they all hold the view that they do given that I have experienced what I've experienced'.

137    Ms Rossi said she described the new Dr Gill reports as being a 'lie' or words to that effect, because she wanted her lawyers to understand that she disagreed with Dr Gill's conclusions.

138    She accepted that at the meeting she talked about her concern that records from Louise Buchanan had not been provided to the psychiatrists. She expressed concern that the psychiatrists had gone to great lengths to disseminate 20 year old medical records which she believed to be irrelevant. She asked Mr McCristal to get the additional notes from Ms Buchanan that had been provided under subpoena (Ms Buchanan was a psychologist with whom Ms Rossi had consulted under the Qantas Employee Assistance Program (EAP)).

139    Ms Rossi said that Mr McCristal said at this meeting that he would not represent her in court if she did not pay him upfront.

140    In her fourth affidavit Ms Rossi said that she felt sick at the conference, that she was being cut off by Mr McCristal and Mr Hutchinson, that they were trying to shame her, and that her heart was racing and she felt her blood pressure increasing. She said she felt 'completely paralysed'.

141    Mr McCristal gave evidence about the meeting. He said he discussed with Ms Rossi that her prospects had changed following the receipt of Dr Gill's report. He recalled that he had discussed with Ms Rossi his belief that her claim did not have good prospects, and that Mr Hutchinson and he spent some time explaining the issues to her. He said he explained what to expect at the mediation to the effect that she would sit in another room while there would be some negotiation where the lawyers were more likely to speak frankly, and that if an offer was made they would come and speak to her. He said they were really only talking about compensation entitlements with Ms Rossi and what she might expect. He accepted it was possible that he did not give copies of Dr Gill's reports to Ms Rossi, noting that it was his firm's policy at the time not to provide them prior to payment. He denied Ms Rossi said the reports were not accurate, although he accepted it was possible she said something in objection to the reports. He doubted there was any reference to a deed or the like because at that stage he did not know whether there would be any settlement offer.

142    Mr McCristal denied he said words to the effect that he would not represent Ms Rossi if she did not pay upfront - he said it would have been inappropriate to do so in circumstances where no offer had been received at that point from Qantas, and that he would only ask for fees up front if he considered a client was rejecting a good offer that they should accept.

143    Mr McCristal said Ms Rossi did not seem to him to be upset either at or on the way to the meeting. He said that Ms Rossi appeared to him to participate freely in the meeting and did not appear to exhibit any signs of distress or being overwhelmed. He said that if he had observed such signs or thought that Ms Rossi lacked the capacity to receive or provide instructions, he would have cancelled the settlement conference, and advised Ms Rossi to attend her doctor. He said he had no concerns for Ms Rossi's wellbeing on the day.

144    Mr McCristal otherwise did not purport to have a clear recollection of the detail of the meeting.

145    Mr Hutchinson also gave evidence about the pre-conference meeting. He said his recollection of Ms Rossi's claim, without claiming to remember specific details, was that it was 'fraught and did not have good prospects'. He said Ms Rossi's expectations were 'very difficult to manage' and that she had 'great difficulty accepting views that did not accord with her own assessment of the merits of her case'. Mr Hutchinson says that he told Ms Rossi that she did not have a strong case, and that one of the reasons he believed this was so was because Ms Rossi's position was 'undermined by a doctor recording a psychiatric history that was different and more extensive than the one otherwise given by Ms Rossi'. Mr Hutchinson said he did not recall what was and was not explained to Ms Rossi in relation to how the informal settlement conference would be conducted.

27 October 2008 settlement conference at Sparke Helmore

146    After the pre-conference meeting, Ms Rossi, Mr McCristal and Mr Hutchinson attended the office of Sparke Helmore for the settlement conference.

147    Ms Rossi said in her affidavit evidence that she did not understand why she was at Sparke Helmore or what the point of the meeting was. Her evidence under cross examination on this point was quite emphatic:

You're saying that, 'I did not understand why we were there and what the point of the meeting was'; do you see that?---Yes.

Well - and you say that you were not told you were there to finalise your claim?---No, I wasn't.

Well, you knew, didn't you, that you were attending Sparke Helmore for the purpose of an informal settlement conference, didn't you?---I had no idea what that entailed or what that meant. So - - -

Well - - -?---So much so that before - the week before I rang and asked from the staff at Maurice Blackburn in Traralgon what the letter meant and I was told that they were not allowed to talk to me about my matter and that Mr McCristal was not available and nor was Mr Auffray. So I was in the dark …

Well, you weren't in the dark. You knew that you were - that the purpose of the conference was to seek to try and reach agreement over the settlement of your claim?---I actually did not, and whilst I can understand from a - a lawyer and a legal perspective when you read that letter that you know what that means. I on that day and in that time did not.

You're not seriously suggesting that you didn't understand, given the letter you received on 9 October, where you were told that the purpose of the conference was to try and reach agreement over the settlement of your claim, that you didn't know what that meant?---No, I did not. I believed that it was somehow associated with a letter I had received on and around 18 September, inferring that some time before the trial Mr McCristal was going to set-up a meeting with the barrister. I - I didn't know what the court processes were. I did not know what the claim processes were.

You know though that it was a - you were going to be attending though a mediation, didn't you?---No.

That's what you understood you were going to be attending?---I did not understand anything.

Well, you knew that you were going to be attending a mediation or a conciliation?---No, I did not.

148    As indicated above, both Dr Singleton and Ms Allan on dates prior to 27 October 2008 referred in their notes to a mediation or conciliation. Ms Rossi was asked about this under cross examination:

You knew that you were attending a conference where you had been told on 9 October that it was for the purpose of the resolution of your claim?---No. That is not what I understood about the letter.

…

You described to Dr Singleton that you understood that the - she has referred to the fact of you attending a conciliation hearing on the Monday?---Again, they are Dr Singleton's notes and her interpretation of anything that she is - they knew that I was going to be meeting with John McCristal, yes.

And they knew that it was for the purpose of some form of resolution by conciliation or mediation?---I don't know. You would probably have to ask Dr Singleton .....

…

Please .....?---I was going to say they were as in the dark as I was.

149    Returning to the circumstances of the meeting, Mr McCristal and Mr Hutchinson met in a separate room with lawyers for Qantas. Ms Rossi was in another room, and at certain points Mr McCristal and Mr Hutchinson came into the room and spoke to her.

150    Ms Rossi understood that she received an offer of $50,000 at the meeting, or 'something along the lines of $50,000', and that there would be no provision of ongoing medical expenses. She did not receive any documents that day.

151    In her affidavit evidence Ms Rossi said that Mr McCristal did not explain what a deed was, 'only that I need to sign documents'. Ms Rossi recalled that there was talk of 'signing off' but denied there was any mention of a deed. When pressed, she did not accept that it was likely that at the meeting they talked about the fact that it would be necessary to enter into a deed. She did not accept that it was likely that at the meeting they talked about the need to enter into a document which contained a provision that would prevent her from discussing her experiences at Qantas.

152    Ms Rossi said she did not have Dr Gill's reports open at the Sparke Helmore conference but said it was possible that on that day she 'looked over them'. She also recalled that Mr McCristal had said that she was unlikely to obtain a serious injury certificate due to her past medical history.

153    Ms Rossi claimed that she was struggling to articulate herself at the meeting and that at one point Mr McCristal said to Mr Hutchinson, 'Did you understand anything she just said?'. She said to them 'You are not listening to me'. In her affidavit evidence she quoted the following conversation:

Mr McCristal: 'You have to sign everything today as I do not want to come back'.

Ms Rossi: 'I am not able to do anything, I can't sign anything. I have to see my doctor'

Mr McCristal: 'You need to come back on the 29 October 2008.'

154    However, under cross examination she disavowed that Mr McCristal had said 'You have to sign everything today as I do not want to come back' (presumably the evidence was revised because it did not fit with the absence of any documents at that meeting to be signed, and for completeness I note that the words 'I am not able to do anything, I can't sign anything' were subject to a s 136 Evidence Act 1995 (Cth) limitation, discussed further below).

155    Ms Rossi also said in her fourth affidavit that at one point Mr Hutchinson responded to her questions with the remark: 'well, that would be if you had cancer'. She said she asked Mr McCristal if Mr Hutchinson knew she had been treated for cancer. Ms Rossi described herself having a physical reaction following Mr Hutchinson's 'cancer' remark. She says she 'could barely speak due to the pressure of oesophageal spasms', which she says makes it difficult to speak without 'coughing uncontrollably' (these matters were not referred to in her earlier affidavits). She stated that she 'did not feel well', that she was 'very upset', that she felt 'overwhelmed', and that she needed to talk to someone about what was going on. She said she asked to see Ms Buchanan's notes. Ms Rossi also described asking Mr McCristal about one of the documents, only to see Mr Hutchinson kick him under the table (Ms Rossi revised this evidence during the hearing - see [187] below).

156    Ms Rossi accepted that there were a number of matters that she knew by the end of the meeting:

Now, what you knew at the end of the meeting on the 27th was that there had been changes in Gill's reports from the 40 per cent - in terms of saying the extent to which Qantas was contributing to your injury changed from the 40 per cent in his previous reports to five per cent ... you knew that at the end of the meeting on the 27th?---Yes.

There had also been discussion … there's a 12 per cent as well in terms of another percentage which was contained in his reports about likely pain and suffering. You know that at the end of 27 October?---I recall that - that this - yes. Yes, that is correct to some degree.

And you knew that at the end of the meeting on the 27th that you were going to come back, not the following day but on the Wednesday?---At the end of the meeting on the 29th when I said I had to go see the doctor and they were going to do something about Louise Buchanan's notes, they said, 'You can come back on the 29th.'

Yes. So on the 27th, you knew that, that you could come back in two days?---They said to come back on the 29th.

…

You knew that you had to consider whether you were going to accept or reject Qantas's offer at the end of the meeting on the 27th?---I - I can't give you an affirmative of what I was thinking at all. I was in a black hole.

Well, you knew you had to decide whether to accept or not accept by Wednesday at the end of the meeting on the 27th?---No, I did not - I didn't know what I was thinking. I have - I have a black hole in this space of time.

…

So you have now no recall, is that right, of what happened after the meeting on the 27th and on the evening of the 27th?---Very little.

Well, you spoke to Ms Allan, didn't you, that night?---Yes.

And you spoke to her, didn't you, about a number of things including you spoke to her about the change in Dr Gill's assessment and made reference to the five per cent and the 12 per cent differences in Dr Gill's assessment?---I don't recall what I said to Ms Allan.

157    Mr McCristal did not disagree with some of Ms Rossi's evidence. However, he denied observing anything in her conduct that caused him to have concerns as to her understanding the events as they unfolded. Mr McCristal said in his affidavit evidence that he has experience dealing with clients with mental illness and his practice is that if he has any concerns about a client's capacity, he will have them assessed. He said he did not observe Ms Rossi being upset or appearing overwhelmed before or during the conferences on 27 October 2008, and he considered her to be clear and articulate, asking questions and being engaged. He said he does not recall anything in her presentation which caused him to believe she did not understand what was being discussed or that she had trouble communicating her views. He recalled that Mr Hutchinson spent some time explaining the issues to Ms Rossi and that she said words to the effect of 'I understand'. He denied that Ms Rossi said she needed to see a doctor and explained that had she done so, he would have cancelled or stopped the meeting and asked her to see a doctor if he had observed her being distressed, or if he had any concerns about her capacity (and I note that assuming that Ms Rossi said 'I understand', I do not take that to be evidence of itself that she did in fact understand).

158    Mr McCristal said it was his practice to draft a letter if any form of in principle settlement was reached for his client to sign, to confirm their instructions. Mr McCristal said it was possible that Ms Rossi had asked to see Ms Buchanan's notes. He denied knowledge of Ms Rossi's cancer diagnosis and said it was never discussed with him. He did not recall that Ms Rossi said anything during the meeting that was 'jumbled' or incoherent and denied that he said words to Mr Hutchinson to the effect of 'Did you understand anything she said?'. He described as absurd the suggestion that Mr Hutchinson kicked him under the table. He did not recall Ms Rossi coughing - he said he simply had no recollection of that.

159    Mr McCristal recalled that Qantas had proposed a settlement on the basis that Ms Rossi make a serious injury application seeking damages so that any settlement sum would constitute a damages sum and not compensation, so that tax liability would not attach to it.

160    Mr McCristal initially said that he was not sure why the conference needed to be reconvened on the 29 October 2008. Under cross examination he recalled that the settlement conference came to an end on 27 October 2008 because there was something in the nature of the settlement proposal that meant it was necessary to return, and he also accepted that it would give Ms Rossi more time to consider the offer that had been put at that stage.

161    Mr Hutchinson said his memory of this settlement conference at Sparke Helmore was vague. He was not asked if he made any comment about Ms Rossi and cancer. He had no recollection of Mr McCristal saying 'Did you understand anything she said?'. He recalled that Ms Rossi was upset on the Monday afternoon, but said that he was still able to understand her, even if she was not necessarily precise at all times. When asked whether he recalled Ms Rossi saying 'you're not listening to me', Mr Hutchinson said he could not recall but said 'I don't doubt that she might have' and that she 'may well have' made such a comment given the difference in views about her case between herself and her lawyers. Mr Hutchinson said he had no recollection of Mr McCristal saying he wanted Ms Rossi to sign anything on 27 October. He said it was possible that Ms Rossi asked to see her doctor, but that he had no recollection of it. He said that he was 'almost certain' that he did not kick Mr McCristal under the table as Ms Rossi described. He said he was 'as certain as I can be' of that, because he did not believe he had ever kicked a solicitor under a table. Mr Hutchinson said the utility of the settlement meeting on the 27 October had been exhausted by the end of the day, and that they 'seemed to be going round in circles' discussing at length the medical evidence and the settlement.

After the conference and leaving the building

162    Ms Rossi claimed that she felt disoriented and overwhelmed when she was leaving the building, and felt that she could not take in any information. She said she could not recall where she had parked her car.

163    However, she gave evidence as to various things that happened at that time. She said that as they were leaving the building she asked Mr McCristal why none of the doctors (being a reference to Dr Kornan, Dr Gill and Dr Jackson) referred to her attending EAP in their reports.

164    Ms Rossi said that Mr McCristal did not answer and said he needed a coffee. She said she followed him to a café and had a glass of water while he ordered a coffee, and that she said words to him to the effect that 'it is not right what you are doing, falsely accusing me of misrepresenting my medical records to Dr Gill'. Ms Rossi said that she had provided a medical history to the psychiatrists and that to the extent the doctors indicated in their reports that they had not initially been given an accurate history, that was 'their interpretation of some inaccurate material'.

165    Mr McCristal said it was not possible that he had a coffee on 27 October, due to a heart condition. He could not recall assisting Ms Rossi to her car, and he said that he did not believe it had occurred as it would have been unusual and therefore something he would have remembered.

166    It is apparent that Ms Rossi and Ms Allan had a phone call sometime after the settlement meeting concluded. Ms Allan's notes of the communications on 27 October 2008 state:

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

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

Wednesday: accept or not.

Wanting to pursue Louise Buchanan's notes - original.

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

28 October 2008 (Tuesday)

167    Ms Rossi said that the next day she was driving to an appointment with Dr Singleton when she received a phone call from Mr McCristal, during which she was told she had to 'sign off' on the settlement 'now'. Ms Rossi says she pulled over and had a conversation with Mr McCristal where he raised his voice and became 'verbally aggressive'. She says he told her that she would 'not get another chance' if she did not sign the settlement then, that the matter wouldn't go to trial unless she paid all his legal costs 'up front' and that she would incur further costs. Ms Rossi said she was upset and crying during the call, that she told Mr McCristal that she was on the way to the doctor and again told him that what he was doing was 'not right'.

168    Mr McCristal did not recall this call but denied ever raising his voice with a client and denied pressuring Ms Rossi to settle. He said it was possible there was a call.

169    In her affidavit evidence, Ms Rossi said she had an hour-long consultation with Dr Singleton where she struggled to explain what had happened, but was able to recall discussing her concern that the settlement amount would not cover her Medicare and Centrelink repayments. Ms Rossi said she told Dr Singleton she felt as if she could not comprehend what was happening and felt 'erased' and 'unvalidated'. Ms Rossi said that Dr Singleton recommended she raise these concerns with her lawyers.

170    Dr Singleton's clinical notes indicate:

Long consultation, really struggling currently, attending conciliation hearing yesterday, has been offered 'pitiful' settlement -which barely covers the Centrelink payments she missed over the last few years with a clause to prevent her from discussing her experiences at Qantas with anyone and no provision for coverage of ongoing medical expenses as a result of her condition. Lawyer not wanting to continue to represent her. Feels that she has lost all hope. Counselled at length today. Increasing suicidal ideation denies fixed plans, discussed options would be agreeable to private hospital admission if final discussion between lawyers doesn't go well tomorrow. Validated her current emotional state and challenged her interpretation of events. Encouraged her to attempt to be mindful in light of her current stressors and try to acknowledge this does not mean that she has not experienced trauma and does not mean her life is not worthwhile. Has been speaking with Amanda regularly. Agrees to phone contact tomorrow.

171    Under cross examination, Dr Singleton said that she did not have a strong recollection of the consultation, although she had some recollection of Ms Rossi's level of distress, but accepted that the information in the note would have reflected what was relayed to her.

172    Ms Rossi said she spoke to Mr Hutchinson that evening, including about Ms Buchanan's notes. She said she received five pages of the Buchanan notes that evening. She said they were emailed to her by Mr McCristal and she went to an internet café in Melbourne to read them. She noticed that they were not in the correct order and included a date on which she did not recall having seen Ms Buchanan.

173    Mr Hutchinson said he remembered the phone conversation, and that he believed he called Ms Rossi in order to tell her that she ought to know 'what she wanted to do so she could give instructions'. Mr Hutchinson recalled telling her that she ought to ring Mr McCristal and tell him what she wanted to do and that he was unwilling to receive those instructions directly. Mr Hutchinson did not recall discussing Ms Buchanan's notes with Ms Rossi during the phone conversation. As to Ms Rossi's claim that he said words to the effect of 'this is not a conspiracy' and 'you are being paranoid', Mr Hutchinson conceded in his oral evidence that it was possible, but said that it would be unlikely that he would have accused her of paranoia. Mr Hutchinson added that the context of the conversation, as he saw it, was that Ms Rossi had very strong views about the merits of her case and had come to be quite concerned about the availability of the Buchanan notes, and in that context it was possible that he may have said words to the effect that it was not a conspiracy. He said he would describe Ms Rossi as 'fighting her corner'.

29 October 2008 settlement meeting continued (Wednesday)

174    Ms Rossi said she unsuccessfully tried to contact Mr McCristal on the morning of the 29th.

175    Ms Rossi said that when she attended at Sparke Helmore's office on 29 October 2008 at around 1.00 pm or 2.00 pm, she understood that the purpose of the meeting was to see if her claim against Qantas could be resolved.

176    Ms Rossi said she met with Mr McCristal and Mr Hutchinson. She said something about the settlement amount being offered not covering Medicare and Centrelink. She said Mr McCristal and Mr Hutchinson left the room and came back and said the amount had been increased to $75,000 and that it was reflected in a document called 'Terms of Settlement'.

177    Ms Rossi said that Mr McCristal discussed with her the Your Claim letter. She received the three pages. She said that she asked him about negligence and he pointed out the part of the letter that addressed that. He said to her that the Deed would end the claim, and that she was to 'remember you cannot talk to anybody about this claim and cannot disparage Qantas'.

178    The Your Claim letter from Mr McCristal to Ms Rossi is dated 28 October 2008, which is likely when a draft was prepared, and reads as follows (with numbering as in the original):

Your Claim

We refer to your attendance on the writer of even date.

We confirm your telephone instructions to Mr Hutchinson of counsel on 28 October and your confirmatory telephone instructions to Mr McCristal of our office this morning to settle your WorkCover claim against Qantas on the following terms:

5.    That you be paid a minimum settlement sum of $50,000.00 plus your party-party legal costs.

6.    The settlement finalises any claims against Qantas arising out of your employment.

7.    The settlement sum includes medical expenses, weekly payments and any lump sum compensation arising from your employment.

8.    You must keep the terms of the agreement confidential and it is a term of the agreement that you will not disparage Qantas.

You will be responsible for payments to Centrelink for a period of 35 weeks. Based on your instructions that you were initially in receipt of $180 per week, we calculate a repayment to Centrelink of $6,241.00.

You will also have to re-pay any amount owing to Medicare which relates to your claim. Based on your instructions we estimate amounts re-payable to Medicare are approximately $10,700. You will shortly receive a print out from Medicare of consultations which relate to your Qantas claim and consultations which do not relate to your Qantas claim. You must only tick those consultations which you are 100% sure only relate to your Qantas claim and these ticked items will be refunded to Medicare.

We confirm our advice and the advice of counsel that there was a significant risk that you would fail all-together in your claim against Qantas. In this regard we confirm our advice that Mr John Gill after reviewing your pre injury medical history was of the opinion that the work related contribution to your current incapacity was minimal.

We also confirm our advice and the advice of Mr Hutchinson that even if your claim succeeded the most you would be entitled to would be a period of payments for 104 weeks from the date of injury. During this period you would be precluded from receiving any payment for approximately the first 50 weeks by virtue of a voluntary departure package that you received at the date your employment was terminated. In addition, as you took money [from] your superannuation, you would be precluded for a further 22 weeks from receiving WorkCover benefits. The result of these reductions would mean that you would be entitled to 32 weeks at 75% of your base pre injury salary excluding overtime and allowances. Accordingly, even if your case went well you are likely to only receive 24 weeks of your base salary.

We will attempt to negotiate a higher settlement for you.

We confirm our advice that we do not believe you have any prospects of bringing a negligence claim against your employer. To do so you would need to demonstrate that you have a Serious Injury as defined under the Accident Compensation Act. A Serious Injury is defined as:

3.    A level of whole person impairment under an American guide of 30% or more.

4.    A psychological injury which has had a more [than] significant impact in the long term on your ability to earn income or your lifestyle.

Based on the medical reports we hold on file you would have no prospects of demonstrating a serious injury due to the fact that our best medical evidence indicates that the work component of your injury is minimal in the context of your overall condition.

We have agreed not to charge you solicitor client costs except for unrecoverable out of pocket expenses being for Mr Gill's review of the medical material & supplementary reports & counsels unrecoverable fees in the sum of $5,000.00.

Please sign the attached copy letter to confirm your instructions and to confirm that you understand the nature of this [settlement].

If you have any queries, please do not hesitate to contact our office.

179    Ms Rossi accepted that Mr McCristal read out this document to her (and that he read out all three documents).

180    However, Ms Rossi in her affidavit evidence denied she gave instructions to settle for a minimum amount of $50,000. She stated that she told Mr McCristal the document did not reflect her instructions and that 'this is not right'.

181    She also denied that she was provided with the documents in the way that term might ordinarily be understood. For example, in her affidavit evidence Ms Rossi said that Mr McCristal 'handed her' a copy of the Your Claim letter. Under cross examination she modified that evidence:

No, no. He gave it to you in the meeting, didn't he?---Physically?

Handed it to you?---I don't - I don't recall he did, not this particular document.

That's fine?---Yes. He presented it across the table, not for me to actually pick up and read through. He was referring to something on it and passed it - well, he was sitting very close to me. So in reference of he handed it to me, I look at where he's - and he's pointing to something on it where - where he's referring to, where I am - he's showing something.

So you accept that he handed you a copy of your claim?---He passed it in my direction, so - yes. You - you could - you could assume that that is - is what he did, but he turned - - -

He gave you … and you read it, didn't you?---No. There was something on it particular that he was pointing out to on it. I didn't read through this particular document. He read it out to me in its - in its content.

Well. You read parts of it, though, didn't you?---Yes, a part - a part of it or parts. I don't know.

And you had a copy of it because he handed it to you, didn't you?---You mean in addition to him having a copy …

Your evidence says, Ms Rossi?---No.

Your evidence says:

He handed me a further document entitled Your Claim.

So you had a copy of it when he handed it to you?---No, I didn't.

So your evidence is wrong, is it, at [104]?---No. No, Ms Raper. It's not wrong.

Your evidence is:

Mr McCristal handed me a further document entitled Your Claim.

…

I'm not asking you about what's on the table. I'm asking you about him handing you a copy of your claim. He gave it to you, didn't he?---No, he did not, not in the way that - - -

So that's wrong. So your evidence is wrong at [104], is it?---No. No, Ms Raper. My evidence is not wrong. It is not in the way you're suggesting.

What is ambiguous or not right about him handing you a copy of your claim? That's your evidence?---But it - but it relates to something specific about him passing it to me. He was referring to something I had asked him about, and I can't tell you exactly what it was that I was asking in relation to this particular statement, and he was sitting next to me. I don't even think he let go of it.

If he didn't let go of it, how could he have handed it to you?---Well, so that he puts - I will have to describe it to you physically.

If he has handed something to it, you - something to you, you have it, not him?---I think two people can be holding the same document.

So you were both holding the same document, were you?---It's possible.

182    Ms Rossi accepted that she got upset because Mr McCristal and Mr Hutchinson were telling her things that she did not agree with, and she was angry with them, or 'expressed some emotion'. She said she was concerned because she was told she would never get another lawyer this late.

183    When pressed under cross examination as to why she felt angry with Mr McCristal and Mr Hutchinson, the following exchange ensued:

When you say they didn't listen to you, what you mean by that is that they didn't accept what you were telling them about your case and how good it was, in your view?---No. It isn't - it isn't about their opinion about whether my case was good or not, Ms Raper.

And it was the case where you felt that your - you were angry at them because you thought they were giving up on you when you thought you had a good case against Qantas?---No. That's not the case.

So you thought they did think you had a good case on the 29th?---That the position that I found myself when these three pages were presented to me were irrelevant to this concept of whether they did or didn't think I had a good case.

You knew though, didn't you, on the 29th that Mr Hutchinson and Mr McCristal didn't think that you had a good case?---I knew that they had opinions about my situation, about my health records, about my life, whether I said something or didn't say something, and on prospects of what they thought about my case, and what they thought was irrelevant to why I was in this situation signing these documents.

So you accept, then, am I right, in relation to my question, as opposed to your answer, which is that they - you knew on the 29th that they were of the belief that you didn't have a good case?---I suppose that the - that this - or that this had been imparted in some sentiment to me and I did not agree with them about the reasons why they didn't think I had a good case.

And - - -?---The words, 'You don't have a good case,' I do not recall this language being used.

But you accept that's what - you did understand that was the difference between you and Mr McCristal?---I understand that we had different opinions about the place where I worked, the origins of my injury, the experience I had, what caused my injury, so many things.

184    Ms Rossi gave similar evidence when asked about her affidavit evidence that Mr McCristal had handed her a document titled 'Terms of Settlement'. Logically, the Terms of Settlement reflected the revised offer that Qantas had proposed. She said:

I didn't read - sit and hold the document and read it from beginning to end by myself. It was not unlike where I had asked him something he had possibly learned over with the document in hand so that it slightly reached me - maybe slightly reached him, 'This is what I'm referring to.' At no time did I take the document in my hands while they sat and I read it through by myself, not any of those three documents in that way.