AB v XYZ Pty Ltd

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2022 0116

AB	Applicant
v
XYZ PTY LTD	Respondent

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JUDGES:	BEACH, KENNEDY JJA and J FORREST AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	6 February 2024
DATE OF JUDGMENT:	14 March 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 31
JUDGMENT APPEALED FROM:	[2022] VCC 1005 (Judge Pillay)

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ACCIDENT COMPENSATION – Workplace injury – Claim for compensation pursuant to Accident Compensation Act 1985 – Post-traumatic stress disorder, depression and associated injuries allegedly caused by sexual assaults, associated harassment and abuse – Whether applicant suffered injury arising out of or in the course of employment – Whether judge erred in failing to conclude that applicant suffered injury arising out of or in the course of employment – Credit and reliability of applicant’s evidence heavily contested at trial – Judge’s credit findings adverse to applicant – Proposed appeal having no real prospect of success – Leave to appeal refused.

EVIDENCE – Undesirability of witness statements – Credit – Lies – Use to be made of lies told by a party.

Accident Compensation Act 1985, s 82(1), Evidence Act 2008, s 140(2).

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Counsel
Applicant:		In person
Respondent:		Ms FAL Ryan SC with Ms JE Clark
Solicitors
Applicant:
Respondent:	Russell Kennedy

BEACH JA
KENNEDY JA

J FORREST AJA:

In August 2007, AB commenced employment with XYZ Pty Ltd (‘XYZ’) in a contract role to assist with a merger in which XYZ was involved. AB’s employment with XYZ came about as a result of an acceptance by her of an offer of employment by XYZ’s managing director, CD, with whom she had previously been involved in a casual sexual relationship for some months in 2004/2005. On 19 March 2008, XYZ’s employment was terminated in circumstances subsequently described by AB as ‘the termination incident’.
In August 2012, AB made a claim against XYZ under the Accident Compensation Act 1985 (‘the AC Act’) for compensation in respect of ‘post-traumatic stress disorder, depression and associated injuries’ which she alleged had been caused by ‘sexual assault and associated harassment and abuse’. In an attachment to her claim form, AB alleged that the conduct (described as various occasions of sexual assault and ongoing harassment and abuse) giving rise to her injury occurred during the period 28 December 2007 to 19 March 2008, and that CD was the perpetrator of this conduct.
AB’s claim was rejected by XYZ’s claims agent and, in May 2013, AB commenced a proceeding in the Magistrates’ Court seeking declarations that she was entitled to weekly payments of compensation and medical and like expenses in accordance with the AC Act. In her statement of claim, AB alleged that she sustained ‘psychological/psychiatric injury including but not limited to stress and anxiety’, and that these injuries were sustained ‘during the period from about 28 December 2007 to about 19 March 2008 … in circumstances where she was sexually assaulted and subjected to abuse, bullying and harassment in the workplace by [CD]’.
In October 2018, after a hearing in the Magistrates’ Court, a magistrate made orders with which both parties were dissatisfied. In December 2019, an appeal by AB and a cross-appeal by XYZ was allowed by a judge sitting in the Trial Division, and AB’s proceeding was remitted to the Magistrates’ Court for rehearing and determination.[1] In December 2020, however, the proceeding was transferred to the County Court for hearing and determination.
[1]AB v XYZ Pty Ltd [2019] VSC 788 (Richards J) (‘2019 Appeal Reasons’).
The trial of AB’s proceeding was heard by Judge Pillay in the County Court over 11 days in March and April 2022. On 12 July 2022, his Honour gave judgment for XYZ.[2] Essentially, the judge, whilst rejecting the evidence of CD, did not accept AB’s evidence of the various events which she claimed had occurred and caused her to suffer injury. In short, the judge concluded that AB had not proved the case which she had sought to make at trial.[3]
[2]AB v XYZ Pty Ltd [2022] VCC 1005 (‘Reasons’).
[3]Ibid [217]–[220], [222]–[229].
AB now seeks leave to appeal (and, if leave is granted, to appeal) from the order dismissing her proceeding. In 11 proposed grounds of appeal, AB makes complaint:
•that the judge erred in relation to causation and the test to be applied in determining a claim under s 82 of the AC Act (proposed ground 1);
•that the judge erred in holding that the principles in Briginshaw v Briginshaw[4] applied to a claim for no-fault compensation under the AC Act (proposed ground 2);
•that the judge failed to give proper weight to particular pieces of evidence and/or failed to consider AB’s evidence and/or specific submissions and arguments made by AB (proposed grounds 3, 7, 9 and 10(f));
•that the judge erred in failing to make findings on ‘key aspects’ of AB’s claim, ‘being the stressors described [by AB] as harassment, bullying and abuse’ (proposed ground 4);
•about the judge’s credit findings adverse to AB (proposed grounds 5 and 10(a)–(e));
•about some of the conduct of XYZ’s trial counsel (proposed ground 6);
•about a failure by the judge to provide adequate reasoning why a particular submission was rejected (proposed ground 8); and
•about a denial of procedural fairness which is said to have resulted from the judge reaching conclusions on material upon which AB had not been given an opportunity to comment or respond (proposed ground 11).
[4](1938) 60 CLR 336, 361–2 (‘Briginshaw’).

History of the litigation

Before dealing with the specific issues raised by AB’s proposed grounds of appeal, it is necessary to give a further description of the history of this unfortunate litigation. As we have said, the proceeding was originally commenced in the Magistrates’ Court in May 2013. The trial in that Court commenced in June 2016, and ultimately occupied 12 hearing days. AB was cross-examined over six days, mostly on issues going to her credibility. Various medical and other expert witnesses gave evidence, and the magistrate heard final submissions in November 2016. The transcript was available to the parties.
In July 2018, the magistrate gave oral reasons in favour of AB. His Honour was not satisfied that the sexual assaults alleged by AB occurred. However, he found that, by March 2008, AB was suffering from significant stress, which manifested in various symptoms and poor work performance, and meant that she could not perform her normal work until March 2010. Final orders were made in October 2018, requiring XYZ to pay AB compensation in accordance with the AC Act for the period 19 April 2008 to 1 March 2010, but not thereafter.
Pursuant to s 109 of the Magistrates’ Court Act 1989, both parties appealed from the orders made by the magistrate. The appeals were heard by Richards J sitting in the Trial Division in October 2019 and, as we have said, her Honour delivered judgment in December 2019 allowing each appeal. In allowing AB’s appeal, her Honour concluded that the magistrate had failed to have regard to material considerations, being the evidence of Dr Sandra Hacker about delayed reporting of sexual assaults and an email sent by AB to CD on 15 April 2008. In allowing XYZ’s appeal, her Honour concluded:
AB did not present a case that she had suffered injury due to general stress at work. Her claim was for compensation for serious psychiatric injuries caused by traumatic incidents involving sexual and physical assaults by CD. It was unfair of the Magistrate to decide the case on a basis that was not litigated.
While there was evidence that AB’s working environment was stressful, stress is not an injury. Whether it is a cause of mental injury is a matter for medical evidence. There was no evidence that AB’s psychiatric injuries were due to work stressors other than assaults by CD.[5]
[5]2019 Appeal Reasons, [10].
Her Honour remitted AB’s proceeding to the Magistrates’ Court for rehearing and determination by a different magistrate. In December 2020, the proceeding was transferred to the County Court. At that point, AB (who had previously been represented by solicitors and counsel) ceased being represented. From that point she conducted the litigation herself.
Upon the matter being transferred to the County Court, it was (to use the words of the trial judge) ‘closely case managed by a judge because AB commenced litigation as a self-represented litigant’.[6] Between June 2021 and March 2022, eight directions hearings were conducted ‘to refine the issues in the case’.[7]
[6]Reasons, [21].
[7]Ibid.
At a directions hearing conducted by the judge on 3 February 2022, AB asserted that XYZ was changing its case in the lead-up to trial and, as a result, she was not sure what case she needed to meet. At that stage, the pleadings governing the proceeding were AB’s original statement of claim in the Magistrates’ Court and XYZ’s original defence, which had not changed since the Magistrates’ Court proceeding. Amongst other orders, the judge directed the parties to file and serve signed witness statements of all witnesses they proposed to call. Having ‘reiterated’ that it was for AB to prove her claim, the judge also directed XYZ to file and serve its opening in written form 14 days prior to trial. It appears that this order was made because of AB’s assertion to the judge that she was not sure what case she needed to meet. No order was made for AB to file or serve her opening in written form.
Prior to trial, and pursuant to the judge’s orders, detailed witness statements were filed and served, including a 75 page statement from AB and two statements from CD (16 pages and 3 pages respectively). Additionally, XYZ filed a written opening of some 36 pages in length. A vast array of documents were filed and served in preparation for the hearing of the trial. These included a large bundle of emails relied upon by AB; a large bundle of emails relied upon by XYZ; telephone records; medical reports; police statements; diary entries; printouts; Australian Human Rights Commission (‘AHRC’) documents; WorkCover documents; references; receipts; statements; and a miscellany of other documents.
In its written opening, XYZ noted that AB’s claim was that she had suffered injury arising from ‘sexual assault and associated harassment and abuse’. XYZ’s opening stated that these allegations were:
•‘strenuously denied by CD’;
•‘not corroborated by any lay witness’;
•‘made following a protracted period of interaction between AB and CD over more than two years, during which AB made numerous false allegations and attempts to obtain money and employment from CD, culminating in CD obtaining an interim intervention order against AB’; and
•‘not reported to anyone until almost three years after the first incident [was] alleged to have occurred, when AB lodged a complaint with the Human Rights and Equal Opportunity Commission on 18 November 2010’.
In the opening, XYZ made clear that the credit of AB and her reliability as a historian were crucial to the resolution of the factual dispute between the parties, that it would submit at trial that AB’s evidence lacked credibility, and that her version of events should not be accepted.
In her witness statement, under the heading ‘Work issues start in late 2007’, AB described problems she had with CD’s ‘management style and lack of support and his continual lying’. AB described various matters which allegedly occurred between 10 November 2007 and 20 December 2007.
Under the heading, ‘Incidents Giving Rise To Injury’, AB then identified the circumstances of a series of incidents commencing on 28 December 2007 and finishing on 19 March 2008. In very brief compass, and as labelled by AB in her witness statement, these incidents were:
(1)‘Compactus incident’: an incident that is said to have occurred in the workplace on 28 December 2007, and during which CD is alleged to have engaged in non-consensual intercourse (rape) with AB in a compactus bay.
(2)‘Architects meeting incident’: an incident that is said to have occurred on 11 January 2008 after a meeting with design architects, in an en suite bathroom of the corner office, and during which CD is alleged to have engaged in non-consensual intercourse (rape) with AB.
(3)‘Completion incident’: an incident that is said to have occurred on 21 January 2008 in the workplace, during which CD is alleged to have ‘grabbed’ AB front on and put his arms around her.
(4)‘Sydney trip incident’: an incident that is said to have occurred on 31 January 2008 after AB and CD had been to Sydney. CD gave AB a lift home. AB alleged that he followed her inside and again ‘forced himself’ onto her.
(5)‘Good Guys incident’: an incident that is said to have occurred on 4 February 2008 in the workplace. AB alleged that she was sexually assaulted (raped) by CD in the storeroom after bringing electrical goods which she had purchased from the Good Guys into work.
(6)‘Hairdresser incident’: an incident that is said to have occurred on 6 February 2008 in the storeroom when CD allegedly sexually assaulted (raped) AB. Later in the day, AB went to the hairdressers, where she recalled CD calling and texting her.
(7)‘Staff complaint/car accident incident’: an incident that is said to have occurred on 12 February 2008, when AB alleges she was observed coming down from level 35 crying and also seen in the toilets crying by a number of XYZ’s staff.
(8)‘AAMI incident’: an incident that is said to have occurred on 15 February 2008 after CD had driven AB back from a panel beater. Later in the morning, CD is alleged to have sexually assaulted (raped) AB in a storeroom of the workplace.
(9)‘E+Y Luncheon incident’: an incident that is said to have occurred on 21 February 2008 after a business lunch, during which CD is alleged to have sexually assaulted (raped) AB.
(10)‘ICAA Conference incident’: an incident that is said to have occurred on 3 March 2008 in a conference hotel room in the Yarra Valley, during which CD is again alleged to have sexually assaulted (raped) AB.
(11)‘Hardware Lane incident’: an incident that is said to have occurred on 7 March 2008 after a lunch in Hardware Lane, which allegedly included CD again sexually assaulting (raping) AB.
(12)‘Head flicking incident’: an incident that is said to have occurred on 12 March 2008, but which did not include any sexual assault. This incident allegedly included CD taunting AB, telling her she was useless, and ‘flicking the side of [her] head’.
(13)‘Wall slamming, bullying and abuse incident’: an incident that is said to have occurred on 14 March 2008 and which also did not involve any allegation of sexual assault. During this incident, CD is alleged to have verbally abused AB and ‘slammed’ AB into a wall. As part of this incident, AB alleged that, in response to her telling CD that he was a pathological liar, CD ‘agreed that he was a liar; that he saw nothing wrong with being a pathological liar; that he was good at lying; and [that] if [AB] didn’t like it, [she] could leave’.
(14)‘Termination incident’: a description of events following the wall slamming, bullying and abuse incident up to and including 19 March 2008 when AB’s employment with XYZ was terminated.
In her submissions in this Court, AB referred to the core and surrounding facts and circumstances of each of these incidents as ‘Stressor #1’ to ‘Stressor #14’ respectively.

The trial

We should commence by noting the difficulties faced by the trial judge in managing the conduct of this trial. Throughout the course of the interlocutory steps and for most of the trial, AB was unrepresented. It is clear from the transcript of the trial, and from AB’s appearance on the application for leave to appeal (in which she again represented herself), that she is intelligent and articulate: she understands many of the legal principles (and nuances) associated with the conduct of her case.
That, however, is not to say that AB did not, in the course of the trial, require some assistance from the judge as to the manner in which to conduct her case. The role of the judge in a case involving an unrepresented litigant was recently summarised by the South Australian Court of Appeal in Gassy v The King[8] as follows:
Though the court has a duty to ensure a fair hearing, and it may be necessary to give some assistance to an unrepresented litigant so as to fulfil that duty, that assistance must not detract from the neutrality of the court. The court must remain both neutral and impartial in its conduct of the hearing. The hearing must be fair to all parties. The court cannot advocate for any party, whether or not that party is represented. The court must act carefully to ensure that any assistance given to an unrepresented litigant does not detract from the need to ensure that the represented party also receives a fair hearing. This may at times give rise to ‘tension between maintaining the impartiality of the judicial officer and the provision of a degree of assistance’:
When a litigant represents himself, the judicial officer is placed in a difficult position. The judicial officer must, at all times, act impartially as an independent arbiter, preserving the balance between the parties. The appearance of justice may be adversely affected if one of the parties, especially the losing party, believes that the judicial officer has become too close to the other party and has not approached the issues in the case with detachment and objectivity. If a party believes that the judicial officer is not neutral and has taken up the cause of his opponent, the central point of judicial decision making will be lost: Council of the Municipality of Burwood v Harvey[1995] NSWSC 149; (1995) 86 LGERA 389 per Kirby P at 397. At the same time, the unrepresented party will often be at a disadvantage. The court will, therefore, be concerned to ensure that the trial, be it a criminal or a civil trial, is fair and just. The interests of justice and fairness may require a degree of assistance by the judicial officer to the unrepresented litigant. There is, therefore, a tension between maintaining the impartiality of the judicial officer and the provision of a degree of assistance, and, indeed, the appropriate degree of assistance, to the unrepresented litigant.[9]
[8][2023] SASCA 90, [37].
[9]Extracted from Pezos v Police(2005) 94 SASR 154, [10] (Debelle J).
Before going to the specific issues in dispute between the parties in this Court, it is necessary to give a brief description of the trial and to say a little about the way the trial was conducted.
As we have already observed, the parties were required to file and serve witness statements of the witnesses they proposed to call. The critical witnesses in this case were AB and CD. AB’s allegations of CD’s misconduct (sexual assaults, bullying, harassment and abuse) were heavily disputed by CD (and thus also by XYZ) in a case which was essentially word on word (AB’s word against CD’s word), and in circumstances where each of them was subjected to a substantial and heavy attack as to the credibility and reliability of their evidence. Moreover, the fact that there would be heavy and substantial attacks made at trial on the credit and reliability of AB and CD was a matter that would have been obvious to the judge, having regard to the history of the litigation and the way in which the Magistrates’ Court trial had been conducted in 2016.
In Australian jurisdictions, there is no universal practice as to the use of witness statements. Undoubtedly, witness statements are intended to promote the efficient and just determination of disputes — and at times, and in appropriate cases, may do so.

In this Court’s Commercial Court Practice Note, the following is stated in relation to the giving of ‘lay evidence’:[10]
In the experience of the Commercial Court, oral evidence is a more efficient and cost-effective means of leading evidence, avoiding unnecessary evidence in, and lengthy objections to, witness statements. As a result, it is more common for the Commercial Court to order witness outlines … Regardless, the parties should expect evidence of important contested conversations to be given orally.
[10]Supreme Court of Victoria, Practice Note SC CC 1: The Commercial Court, 26 February 2024, [6.4] (emphasis added). See also the Supreme Court of Western Australia, Notice to Practitioners: Amendment to Consolidated Practice Directions – Witness Statements, Witness Outlines and Costs Disclosure, 29 January 2019, in which the following is noted as to the use of witness statements: ‘While the use of witness statements in this Court is intended to promote the efficient and just determination of civil disputes, in practice their use has not always met those objectives’ and goes on to cite cost and the fact that, at times, witness statements ‘do not reflect the witness’s own words’.
In the common law division, the usual practice in a case such as this is to hear the evidence orally without recourse to witness statements.
As this case was essentially oath versus oath, the utility of a witness statement covering a series of alleged assaults and misconduct over a confined period of time is minimal; particularly where a 39 page police statement of AB and the transcript of the viva voce evidence of both AB and CD in the Magistrates Court (in which AB was cross-examined for six days) were available. In normal circumstances, in a common law trial in this Court, each of AB and CD would have been required to give their evidence-in-chief viva voce and then be cross-examined on it. This is far more natural and avoids the inevitable reconstruction of events which will occur in the preparation of a witness statement.
The requirement for the provision of witness statements in a case of this type also places an excessive burden on an unrepresented litigant. Although AB, as we have noted, is a patently intelligent and capable person, we think that this whole exercise could (and probably should) have been conducted differently.
The folly of ordering the provision of witness statements was demonstrated starkly by what happened at the commencement of the trial. Within minutes of the opening of the Court, counsel for XYZ outlined a proposed series of objections and filed lengthy written submissions in respect of the evidence which was to be adduced by AB via her two witness statements (one on her own behalf, and one on behalf of a Ms Breier which was of peripheral relevance). Whilst AB had received a copy of XYZ’s written opening, no notice had been given of these objections.
The contents of each witness statement were then the subject of, to use counsel for XYZ’s words, ‘extensive objection’. The exercise undertaken by the judge involved extensive and exhaustive parsing of much of the contents of both statements identifying the parts which were objectionable (which were most). These objections, which were said to be founded mainly on the provisions of ss 55, 59 and 135 of the Evidence Act 2008 (‘Evidence Act’), took up an extraordinary amount of court time. The submissions of counsel for XYZ and AB’s responses (noting that in relation to the admissibility of Ms Breier’s statement she had pro bono counsel assistance but otherwise had to deal with objections herself) concerning the admissibility of parts of the two statements took two days and occupied over 150 pages of transcript. They resulted in a massively filleted amended witness statement of AB being produced on the third day of the trial.
AB did not object to any part of the witness statements filed on behalf of XYZ.
In the circumstances of this case, it was less than ideal to order the provision of written statements of the evidence-in-chief of the two protagonists. Even if it was thought that the provision of written statements might aid the efficient conduct of the trial, respectfully, the preferable course was for each of AB and CD to be required to give their evidence-in-chief orally.
That said, there is no ground of appeal that makes complaint about this issue, and we are unable to conclude that this process resulted in any unfairness to AB.
Another unusual feature of the trial is that, notwithstanding XYZ’s provision of its opening in written form, AB does not appear to have been invited at any stage by the judge to open her case. Perhaps the judge thought this step was unnecessary because, having regard to the history of the litigation, the ambit and substance of AB’s case was already well-known. As will be seen, however, the extent and boundaries of AB’s case were the subject of dispute between the parties, both at trial and in this Court. While, in our respectful view, AB should have been invited to open her case before giving evidence, again we cannot say (and there is no proposed ground of appeal alleging) that the judge’s failure to take this step resulted in any vitiating unfairness to AB.
While AB appeared in person at trial, she was not entirely devoid of the assistance of counsel. As the judge recorded (and as just noted), AB was assisted by pro bono counsel in relation to objections taken by XYZ to the witness statement of Ms Breier which had been filed and served by AB.[11] Additionally, pro bono counsel assisted AB to cross-examine CD and an expert psychiatrist called by XYZ (Professor Doherty); and also prepared AB’s final written submissions, which were relied upon by her at the conclusion of the trial (and effectively stood as her final address).
[11]Reasons, [23].
The extensive array of documentation tendered at trial created its own complexity for the judge. Of particular significance were two large folders of emails tendered by the parties (AB’s folder containing in excess of 400 pages, and XYZ’s folder containing more than 300 pages).[12] The trial was made more difficult by the fact that each side’s folder was not (and did not purport to be) a complete collection of all of the emails that passed between AB and CD following the commencement of her employment with XYZ. For example, some emails in XYZ’s folder which arguably provided support for its case were not to be found in AB’s folder; and similarly, some emails in AB’s folder which she relied upon in support of her case were not to be found in XYZ’s folder.
[12]While, the numbering of the pages of the defendant’s folder suggests there were slightly less than 300 pages, additional pages were interleafed throughout the folder (eg, pages 8A to 8R and pages 136A to 136H).
Finally, so far as the trial is concerned, it concluded with the parties filing written submissions in lieu of oral final addresses. While there is nothing wrong with final written submissions to which a party might speak to in final address, we pause here to respectfully express the view that, in a case involving any significant complexity (as this one did) and an unrepresented litigant, the utility of oral final addresses (even if supplementing written submissions) cannot be underestimated. At the very least, the exploration in oral argument, of the bases and material upon which a case falls to be decided, is likely to reduce the likelihood of any subsequent complaint of procedural unfairness (and, in particular, a complaint of the kind articulated by AB under proposed ground 11).

Trial judge’s reasons

The judge commenced his reasons for judgment by saying that, at its heart, the case was about the quality of proof required for AB to succeed in proving the very serious allegations she had made.[13] The judge observed that AB alleged that she had been raped by CD on nine occasions (seven occasions at XYZ’s work premises, one occasion at her home and once at a conference). He also observed that she alleged that CD ‘harassed and abused her, including being physically violent by flicking her in the head and slamming her into a wall’.[14] Additionally, he observed that AB ‘was extremely upset, not only by the treatment she was being subjected to but also by her sudden termination, when she believed that she was to be employed until the end of 2008 by XYZ’.[15]
[13]Reasons, [2].
[14]Ibid [7].
[15]Ibid [8].
The judge noted that there were only two key witnesses, AB and CD;[16] that CD denied all of AB’s allegations;[17] that there was ‘scant evidence from collateral sources’;[18] and that there was much force in the sustained attack, on both credit and lack of consistency grounds, on both AB’s and CD’s evidence.[19] The judge said that, because of this, the words of Dixon J in Briginshaw[20] had to be steadily borne in mind.[21]
[16]Ibid [2].
[17]Ibid [2], [9].
[18]Ibid [2].
[19]Ibid.
[20](1938) 60 CLR 336.
[21]Reasons, [2].
Early in the Reasons, the judge noted AB’s evidence that, after the termination of her employment with XYZ, ‘[i]n an effort to regain some power in her relationship with CD, she engaged in a number of ruses and lies’. The judge identified these ‘broadly’ as being:
(i)pretending she was being prosecuted for using Cabcharge vouchers issued by XYZ (‘the Cabcharge issue’);
(ii)falsely suggesting the current affairs program Today Tonight (‘TT’) wanted to interview her for a story on the Cabcharge issue and sexual harassment at XYZ;
(iii)falsely suggesting she was broke and homeless to extort money from XYZ; and
(iv)falsely suggesting she had paid $266,000 to other whistle-blowers to stop them from airing their grievances to TT.[22]
[22]Ibid [9].
We should interpolate immediately that, on a fair reading of AB’s evidence, while she clearly admitted engaging in the pretence and making the false suggestions referred to by his Honour in the above passage, and while his Honour may have concluded that the false suggestion referred to in (iii) was made ‘to extort money from XYZ’, at no point in her evidence did AB admit to making any attempt to extort money from anyone.
Next, the judge referred to a dispute between the parties as to what AB claimed was the offending behaviour perpetrated by CD that led to her alleged incapacity. The judge said:
The Defendant [XYZ] submitted that it was limited to the way AB had expressed the offending behaviour in her claim form. Namely “sexual assault and associated harassment and abuse”. The Defendant submitted that there had to a be a finding of sexual assault to link to the associated harassment and abuse. The Plaintiff [AB] argued otherwise. I accept the Plaintiff’s submission. To accede to the Defendant’s submission would unduly limit the ambit of the Plaintiff’s claim to a very narrow set of words that an injured worked had first used on a claim form. This is not in keeping with the principles of the Act which seek to compensate a worker for injuries sustained in the course of employment. All that is required on the worker’s behalf is ‘… an adequate description in the claim form of the circumstances now sought to be relied upon’. Further I find the words used in the claim form do not bear the meaning the Defendant submits, but rather favour the Plaintiff’s interpretation. I therefore accept that AB can prove bullying and harassment, distinct from making good a claim that she was sexually assaulted.[23]
[23]Ibid [12] (footnotes omitted).
After describing the history of the litigation;[24] AB’s background;[25] CD’s background;[26] and AB’s employment at XYZ (which included a description by AB of fraudulent behaviour allegedly engaged in by CD);[27] the judge turned to the allegations of sexual assault, abuse, bullying and harassment made by AB against CD. The judge specifically referred to and dealt with the compactus incident;[28] the architects meeting incident;[29] the Sydney trip incident;[30] the Good Guys incident;[31] the hairdresser incident;[32] the staff complaint/car accident incident;[33] the AAMI incident;[34] the E+Y luncheon incident;[35] the ICAA conference incident;[36] the Hardware Lane incident;[37] the head flicking incident;[38] the wall slamming, bullying and abuse incident;[39] and the termination incident.[40]
[24]Ibid [13]–[24].
[25]Ibid [25]–[29].
[26]Ibid [30].
[27]Ibid [31]–[38].
[28]Ibid [39]–[42].
[29]Ibid [44]–[45].
[30]Ibid [46]–[47].
[31]Ibid [48]–[50].
[32]Ibid [51]–[52].
[33]Ibid [53].
[34]Ibid [55]–[56].
[35]Ibid [57]–[58].
[36]Ibid [59]–[61].
[37]Ibid [62]–[63].
[38]Ibid [65]–[67].
[39]Ibid [68]–[69].
[40]Ibid [70]–[74].
In dealing with each of the incidents, the judge set out briefly CD’s response to AB’s allegations. Effectively, CD denied all of AB’s allegations of misconduct; and, in some instances, he denied being present at the location of the alleged incident.
When dealing with the compactus incident (which allegedly occurred on 28 December 2007), the judge observed that in her AHRC complaint (made in November 2010), AB asserted that CD’s sexual assaults became weekly and sometimes daily after the compactus incident. The judge noted, however, that ‘[i]n her witness statement filed with this Court, she does not rely on that assertion but, rather, details nine specific sexual assaults during the course of [her] employment’.[41]
[41]Ibid [43].
In relation to the compactus incident, the judge also noted that when CD had been cross-examined in the Magistrates’ Court, he denied being in the office on 28 December 2007, saying that he had been at his holiday house in Dromana. However, telephone records were produced which showed that he was in fact at XYZ’s office on that day. As the judge put it:
Faced with this material, CD accepted that he was at work that day. However, he denied there was any sexual contact between he and AB.[42]
[42]Ibid [42].
Similarly, in dealing with the head flicking incident, the judge recorded that CD initially denied being in the office on the night of 12 March 2008. The judge noted, however, that when taken to phone records which placed him at the office at around 10:30 pm on that night, ‘CD then admitted it was likely that he was at the office that night, but denied there was any head flicking incident’.[43] As the judge put it:
This is the second instance where CD’s denials have been reversed when faced with objective phone record evidence. It does not tell in his favour.[44]
[43]Ibid [66].
[44]Ibid.
In relation to the head flicking incident, the judge also noted that AB sent an email to CD at 12:09 am on 13 March 2008 in which she made complaint about CD having a ‘haughty attitude’ and being nasty to her that night. The judge also observed, however, that this email made no reference to CD’s alleged head flicking of AB.[45]
[45]Ibid [66]–[67].
In relation to the termination incident, the judge identified a conflict between AB’s evidence and CD’s evidence about whether it was agreed that AB’s employment would terminate at the conclusion of her contract on 19 March 2008 (which was CD’s evidence); or whether AB was in fact contracted until the end of 2008 and her contract was terminated prematurely on 19 March 2008 (which was AB’s evidence). The judge gave detailed reasons for preferring AB’s evidence and rejecting CD’s evidence on this issue.[46]
[46]Ibid [71]–[74].
We should make one further observation at this point concerning the judge’s summaries and treatment of the various incidents alleged by AB. While his Honour dealt specifically with 13 of the 14 incidents alleged by AB, nowhere in the Reasons does his Honour summarise or purport to deal with incident number 3, the completion incident (which contained the allegation that, on 21 January 2008 in the workplace, CD ‘grabbed’ AB front on and put his arms around her).
The judge referred to a number of emails which AB submitted supported her claim that she had been sexually assaulted by CD during the course of her employment. The judge said that, before he commenced an assessment of this evidence, he directed himself ‘as a matter of law that there may be good reasons why a person may not complain, or may delay in complaining about a sexual offence’.[47] His Honour then referred to emails sent by AB to CD on 20, 21 and 26 March 2008, which contained the following extracts:
What do you call sacking me
…
What do you call dragging me up to level 35 for sex at your demand
…
And what hurt me more than anything was that you didn’t even come and see how I was yesterday afternoon.
… I just provided crap labour (and sex).
…
You didn’t think I should have choices on level 35.
[47]Ibid [75].
After noting that, despite there being numerous emails between AB and CD from 28 December 2007 until 20 March 2008, the judge said that the emails containing the statements extracted above were the first time that there was any mention of any sexual relationship between AB and CD.[48] The judge then said:
By themselves, these emails, so close in time to her termination, arguably suggest that there was a sexual element in the relationship between AB and CD. They are also strongly suggestive of that relationship being at work and, in particular, on level 35. However, I do not consider that they, by themselves, indicate that the sexual relationship was of non-consensual nature. It does, however, tell strongly against CD’s argument that there was no sexual relationship between them in the period between 2007 and 2008. This is a matter which goes to his credit, the consistency of his evidence, and tells against him. My role, however, is to consider all the evidence in this case and arrive at a conclusion as to whether or not AB has satisfied her burden on the balance of probabilities. It is premature to make such a decision at this stage.[49]
[48]Ibid [81].
[49]Ibid [82].
The judge then turned to XYZ’s submissions. He noted that XYZ argued that the conduct engaged in by AB after her termination was inconsistent with that of a rape victim. The judge noted that XYZ called in aid of this argument the evidence of Associate Professor Peter Doherty. The judge summarised Associate Professor Doherty’s opinion as being that AB’s ongoing relationship with CD after the termination of her employment was inconsistent with there being sexual assaults during the time that she was employed. The judge noted that Associate Professor Doherty highlighted AB and CD’s ‘continuous engagement in social events, such as going out to dinner, and that she sought constant re-employment with him, and contact with him’.[50] The judge gave detailed reasons for rejecting the evidence of Associate Professor Doherty, concluding that at times his evidence ‘bordered on the preposterous’.[51] Having regard to the judge’s total rejection of the evidence of Associate Professor Doherty, it is not necessary for us to say anything further about it.
[50]Ibid [83].
[51]Ibid [84].
Following the rejection of Associate Professor Doherty’s evidence, the judge turned to consider whether the ongoing relationship between AB and CD, from after the time of her termination until the time she made a complaint to Victoria Police, was ‘inconsistent with the behaviour of a female adult rape victim’.[52] In the course of this analysis, the judge set out in some detail the circumstances of the ongoing contact and relationship between AB and CD. This included events alleged to have occurred, and communications between AB and CD, during the period from 19 March 2008 through to February 2012. The judge summarised XYZ’s arguments in relation to these matters, and AB’s response to those arguments, as follows:
The Defendant submitted that the ongoing relationship between AB and CD after April 2008 was completely inconsistent with AB’s allegations of being repeatedly sexually assaulted by CD, and bullied and harassed by him. The Defendant submitted that if AB had been treated in the manner in which she alleged between December 2007 and 19 March 2008, she would have sought to distance herself from CD and XYZ. Rather, what she did was seek continual engagement with CD and, in fact, sought to return to work for XYZ. A second argument, allied to the above, was that AB’s efforts in continuing to have contact with CD and XYZ demonstrated a pattern of lying and manipulation, which was so blatant and devious that it cast real doubt on the veracity of her evidence about what had occurred in the period December 2007 to 19 March 2008.
AB disputed the Defendant’s arguments in respect to the periods after 19 March 2008. She firstly submitted that, at the time she ceased work at XYZ her reputation was in tatters and she was the subject of a scurrilous rumour campaign which was tarnishing her reputation. The manner of her dismissal furthered this. In an attempt to rescue her reputation, she sought re-engagement with XYZ in order to demonstrate that she had not been terminated because of her professional performance but, rather, due to the incompetence of the Board. She submitted this is why she continued to seek contact with CD and why she sought to get her job back. Secondly, she freely admitted that in her campaign to return to her job, she engaged in lying, manipulative and deceptive behaviour on numerous occasions. She felt justified in doing this in order to, first, repair her reputation and, secondly, to obtain power over CD and redress the power imbalance in her relationship with him. To this end, she freely admitted to lying to manipulate him into a position where he felt that she was of some use in his life. In this way, she hoped to stop his behaviour. She also admits in her statements that, in this period, she was psychiatrically unwell and behaved irrationally.[53]
[52]Ibid [85]ff.
[53]Ibid [95]–[96].

Having summarised the parties’ arguments on this issue, the judge set out in some detail the underlying facts of the matters he described as ‘the Cabcharge issue’, ‘the first TT[54] issue’, ‘the second TT issue’, and ‘the IVO[55] matters’.[56] It is not necessary for us to summarise the judge’s detailed descriptions of these matters. For present purposes, it is sufficient for us to note the judge’s identification of some of the numerous lies told, and ruses engaged in, by AB, and his Honour’s conclusions in respect of them.
[54]Today Tonight.
[55]Intervention order.
[56]Reasons, [98]–[200].
Specifically, AB’s lies and ruses included AB telling CD that she had been wrongly convicted of a criminal offence and needed money to fund an appeal; that Today Tonight were investigating a story about CD and/or XYZ; that AB had paid relevant whistle-blowers off in the sum of $260,000; and that AB was, or was about to become, destitute, with nowhere to live, no money and no means of support.
After noting that AB did not deny the myriad of lies and ruses perpetrated by her as part of the Cabcharge and TT incidents, the judge concluded that AB ‘was prepared to deliberately lie about serious matters in order to place CD and XYZ in a compromised position’;[57] that the ‘entire [Cabcharge] fiction was created by AB to manipulate CD and XYZ into a position where they would feel aggrieved by their treatment of her and obtain a financial advantage from them under false pretences’;[58] and that the first TT issue evidenced a willingness on AB’s part ‘to fabricate matters in order to manipulate CD and XYZ into a particular situation of vulnerability and also to extract money as a result of that vulnerability’.[59]
[57]Ibid [106].
[58]Ibid [113].
[59]Ibid [161].
In relation to the second TT issue (which involved AB lying to CD that she had paid off whistle-blowers in the sum of $260,000), and in response to AB’s submission that she had ‘made all these matters up … in order to regain some power in her relationship with CD … to achieve some normality in her relationship with him’,[60] the judge said:
I find that AB engaged in a deliberate pattern of deceptive behaviour in respect to the second TT issue. She fabricated emails from [the angellaM email address][61] to indicate that there were other women going to air grievances with TT. She went further in actively suggesting that these women could be “bought off”, and that she did this on behalf of XYZ and CD. She deliberately created falsehoods about those payments and about the need to sell her Ashworth property and make herself almost penniless in order to save XYZ.
I do not accept that this was done for the purpose of balancing the relationship she had with CD, but rather was done in an attempt to deceive and manipulate him into a position of vulnerability where she could exert control over him. I find that she would say and do things with the sole focus of manipulating and deceiving CD.[62]
[60]Ibid [173].
[61]The identity of the owner of the angellaM email address referred to in this paragraph of the Reasons was the subject of dispute at trial and is also the subject of proposed grounds 7 and 8. For convenience, we will refer to this email address as ‘the angellaM address’.
[62]Reasons, [174]–[175].
After dealing with the IVO matters and the medical evidence called and tendered at trial,[63] the judge turned to the standard of proof. His Honour referred to Briginshaw, as well as the High Court’s decisions in M v M[64] and Fox v Percy.[65] The judge rejected AB’s submission that the principles in Briginshaw did not apply.[66] The judge relied on Fox v Percy for the proposition that contemporary materials, objectively established facts and the apparent logic of events were generally a better guide to determining truth from falsehood than by reference to the appearances of the witnesses.[67]
[63]Ibid [176]–[211].
[64](1988) 166 CLR 69.
[65](2003) 214 CLR 118.
[66]Reasons, [214].
[67]Ibid [215]. Fox v Percy (2003) 214 CLR 118, 129 [31] (Gleeson CJ, Gummow and Kirby JJ).
In relation to AB’s credit, the judge said:
She was a witness who appeared to give evidence under great stress. She was confronted firmly, but fairly, with alleged contradictions in her evidence. She gave evidence over three days. At times she broke down. Throughout that time I consider she attempted to answer as best she could, however I find that her evidence was not accurate but was inconsistent, embellished and at times contradictory. For example she was not accurate in her recounting of the discovery of the alleged falsified balance sheets. As set out above this allegation was presented in excruciating detail in her witness statement, but it was not reported at all until 2015, some seven years after the event. The Plaintiff submitted that her evidence was corroborated by her ‘XYZ-Outstanding item to do’ list in March 2008. In that document she had referred to a sum of ‘$1.8M’. She submitted that was a contemporaneous recording of her uncovering the fraud of CD. I do not accept that CD’s alleged fraud was referred to in the ‘XYZ – Outstanding item to do’ document. I do so because the alleged falsification was for shareholding amounts and not cash holdings. Further CD put in a second statement in which he outlined the shareholding issues clearly and understandably. AB’s evidence on this point was also contradictory. She referred in examination in chief to falsification of the ‘balance sheet’, yet in cross-examination, she stated that it was the ‘copy balance sheet’ that was changed so that the ‘… actual accounts of the company had not changed’. Overall I find that she had failed to refer to the falsification of the balance sheets until first raising it in 2015. In this respect, her evidence was contradictory and false. Her evidence was inconsistent, for example as to whether or not she had obtained a Bachelor of Economics degree. It was embellished for example in its depiction of the deploying of the IVOs. It was contradictory, for example, when she gave evidence of not wanting physical contact with CD after mid May 2009, yet then asking him to come to her house in October 2009. Furthermore she sought work with CD directly, for his benefit and in a long term role. She gave contradictory evidence about the value of a written reference. These are matters of some significance and tell against acceptance of AB’s evidence.
However, I consider there is greater significance to be attached to the Cabcharge issue, and the first and second TT issues. As I have set out above, I find that during the course of these issues, AB displayed a pattern of behaviour where she blatantly lied. She has admitted this. I find she embarked on this course of behaviour to deliberately manipulate CD and XYZ into a position of vulnerability. I find this was a sustained course of deceitful behaviour.
As part of this pattern of behaviour, I find she created the ‘angellam@hush’ alias to propagate the manipulation.
Overall I consider that the veracity of AB’s evidence to be totally undermined by the inaccuracies, inconsistencies, embellishments, contradictions and particularly the behaviour displayed in the Cabcharge issue, and the first and second TT issues.[68]
[68]Reasons, [217]–[220] (footnotes omitted, emphasis added).
In relation to CD’s credit, the judge said:
I find that he was an unimpressive witness. He gave every impression that he simply wanted to give the quickest answer without giving it much thought. His evidence was often shown to be wrong. For example, as to the events of 28 December 2007 in the Collins Street office, he first gave evidence that he was not in Melbourne. When shown phone records that placed him at Collins Street on that day, he recanted this evidence. In a similar vein was his evidence on the head flicking incident. He first gave evidence that he was not at work late that evening so could not have perpetrated the acts attributed to him. When shown phone records that placed him at the office at about 10:36 pm he recanted again. Next is the evidence he gave about having an MBA qualification, which was contradictory and made little sense. He could not adequately explain how a six-week course resulted in an MBA qualification. He could not sensibly explain how the qualification came to be printed on his business cards for two organisations. For example, his suggestions that it was the HR department’s fault do not ring true. I find he was the source of the information and he told people that he had an MBA to most likely propagate that belief to further his business interests. I also repeat that I have found his version of a good working relationship with AB in March 2008 to be completely at odds with the email correspondence between them in this period. I do not accept his evidence in this regard. Overall I consider his evidence to be unreliable and I do not consider him a witness of truth.[69]
[69]Ibid [221] (emphasis added).
In dismissing AB’s claim, the judge concluded his reasons for judgment by saying:
It is not sufficient for the Plaintiff to succeed, in a circumstance where an alleged perpetrator such as CD, gave unreliable evidence such that his version of events cannot be preferred to AB’s evidence. Rather the Plaintiff must still on her evidence satisfy the Court, to the standard identified in Briginshaw.
In this case I consider that the Briginshaw standard requires the Plaintiff to prove her allegations on the balance of probabilities. This means the Plaintiff must prove her case to the reasonable satisfaction of the court which cannot be made by ‘inexact proofs, indefinite testimony or indirect references’.
When examined in total, I consider this is what the Plaintiff seeks to do in this case. Her evidence reaches no higher. I have already touched on the unreliability of her evidence. There is no support for her version from the other lay witness, Ms Breier. Nor does the medical evidence assist in proving the allegations of sexual assault. At its highest, the evidence of Dr Hacker allows for the Plaintiff’s delayed reporting of the events, and the somewhat inconsistent behaviours of the Plaintiff in seeking contact with CD after the alleged sexual assaults. But this evidence cannot by itself make good of AB’s allegations.
AB did seek to draw support from contemporaneous emails which refer to the sexualised nature of her relationship with CD from December 2007 to 19 March 2008. CD denied seeing these emails. I find that they were sent to his inbox and were able to be seen by him, and that he most probably did see them. However I do not consider that they bear the meaning that the Plaintiff suggests. I find that at most they indicate that AB and CD had a sexual relationship but not one that was non-consensual. This finding is bolstered by other emails in which AB seems to deny that CD had sexually assaulted anyone. She wrote on 2 March 2010 to CD in the following terms:
Whilst I don’t believe for one minute that the allegation that you had raped women is true, I can bet my bottom dollar that at least some of the alleged allegations will no doubt centre around that you have been screwing around.
This is entirely inconsistent with a version of events in which CD had sexually assaulted her repeatedly.
The High Court in Fox v Percy warned against an approach of considering evidence in an isolated fashion, rather the whole of the evidence, with regard to witness motive and the overall probabilities must be assessed. Considering the whole of the evidence, I do not consider these emails support the allegation that AB was sexually assaulted by CD. They may support an argument that there was a consensual sexual relationship between AB and CD, but this was not a case advanced by any party and does not require determination. The Defendant urged the Court to find that the Plaintiff was motivated to act in the way she did because she was aggrieved at her manner of termination. Balancing matters overall I consider this is the likely motivation for the Plaintiff to act in the way she did after her termination. This finding puts the matters after her termination in context but also illuminates a reason for the allegations made against CD in the period 28 December 2007 to 19 March 2008. This makes the findings I have expressed in this judgment more likely.
I further find that the harassment and bullying alleged by the head flicking and wall slamming incident did not occur as alleged. This is because of my findings as to AB’s credit and the lack of contemporaneous email reference to such behaviour. I also repeat my reasons in the paragraph immediately above in respect of the likely motive of the Plaintiff. The evidence in this case does not rise to the standard necessary for the Plaintiff to prove her case in respect of these two allegations.
The Plaintiff did raise an alternative ground of argument. This was about ‘… the potential psychiatric effect of a public termination and whether it may be a cause of a depressive condition’. I take this submission to allege that by itself the manner of AB’s termination of employment caused injury, being depression and consequent incapacity, which results in liability under the Act. This was a brief and underdeveloped submission. I reject it as the facts surrounding the termination are inextricably bound up with the allegations the Plaintiff has made about being repeatedly sexually assaulted, bullied and harassed. To attempt as the Plaintiff does here, to isolate the termination itself is wholly artificial. Furthermore, and perhaps more importantly, all of the medical evidence as to the incapacity is based on a history of the sexual assaults, bullying and harassment, intertwined with the termination. The medical experts’ opinion to date is based on an assessment of the Plaintiff’s history of sexual assault, bullying and harassment. None of it is based on the isolated facts of the termination. Any attempt to rely on the medical evidence as to injury and incapacity arising solely from the termination is undermined by the fact that the medical practitioners assessed the whole of the Plaintiff’s allegations in arriving at their conclusion. To the extent that the Plaintiff submits that ‘any pressure’ or punishment brought to bear on an employee is highly inappropriate and could anchor this case in the Act; that was not the case run. The case run focussed on AB being sexually assaulted, bullied and harassed. For the reasons set out above I dismiss AB’s claim.[70]
[70]Ibid [222]–[229] (footnotes omitted).

AB’s proposed grounds of appeal

In her application for leave to appeal, AB advances the following proposed grounds of appeal:
1.The trial judge erred by not applying the correct legal test regarding causation, pursuant to s 82 of the Accident Compensation Act 1985 by failing to make findings and base a decision on the consequences of, and the effect on the Applicant, of the conduct of Mr CD/circumstances in the workplace.
2.The trial judge erred in applying the Briginshaw principles.
3.The trial judge failed to give proper weight to 20 March 2008 emails.
4.The trial judge erred in failing to make findings on key aspects of the Applicant’s claim, being the stressors described as harassment, bullying and abuse.
5.The trial judge made findings adverse to the Applicant’s credit derived from the absence of contemporaneous email evidence when such evidence was wholly within the provenance of the Respondent XYZ.
6.The conduct of counsel for the Respondent during the trial deprived the Applicant of a fair trial. In particular, immediately on commencement of the trial making gratuitous criminal allegations against the unrepresented Applicant and misleading the Court to believe the Applicant had previously confessed to such at the first trial.
7.The trial erred in failing to consider the submissions of the Applicant dated 9 May 2022 as to the identity of the owner of the [the angellaM address].
8.The trial judge failed to provide any, or any adequate reasoning as to why the Applicant’s submissions dated 9 May 2022 containing her argument as to why she was not the owner of [the angellaM address] were rejected.
9.The trial judge failed to consider the Applicant’s evidence and arguments concerning:
(a)Her mental health status after 19 March 2008 onwards;
(b)The behaviour of Mr CD from 19 March 2008 onwards, including in particular the events of 2009 as regards the Court’s findings against the Applicant’s credit related to the first and second ‘TT’ and Cabcharge issues;
(c)Mr CD sexually taunting the Applicant she was a lesbian, at the trigger for the ‘TT’ email.
10.The trial judge made findings against the credit of the Applicant on an erroneous factual basis and/or by failing to take into account material considerations:
(a)That the Applicant had fabricated in 2015 the balance sheet/shareholding issue.
(b)By finding the Applicant had fabricated the incident of 10 March 2009 and the instance of sexual conduct on 10 March 2009.
(c)The Applicant had embellished her evidence on IVO #1, IVO#2 and AHRC conciliation.
(d)The Applicant had contradicted her evidence on rebuffing Mr CD’s advances in 2009.
(e)The Applicant had contradicted her evidence on value of employment references.
(f)By failing to consider Applicant’s evidence on the ‘I don’t believe for one minute that the allegation that you had raped women is true’ email.
11.The trial judge failed to accord the Applicant procedural fairness in that he took into account in reaching his conclusion, to the Applicant’s prejudice, material which had not been relied on at trial and put to the Applicant in cross examination, without providing the Applicant with the opportunity to comment or respond to the material.
A number of the applicant’s proposed grounds of appeal are interrelated. Specifically, proposed grounds 1, 2 and 4 deal with the extent and scope of AB’s claim, the facts AB was required to prove in order to succeed on her claim and the standard of proof applicable; and proposed grounds 5 and 7–10 deal with AB’s complaints about the judge’s determination of credit issues against her. We will deal with proposed grounds 1, 2 and 4 collectively, before dealing with grounds 5 and 7–10 collectively. Proposed grounds 3, 6 and 11 will then be dealt with individually.

Proposed grounds 1, 2 and 4

In proposed grounds 1, 2 and 4, AB makes complaint that the judge wrongly confined her claim to nine counts of rape and two counts of physical assault, and then rejected that claim on the basis that her evidence did not satisfy the Briginshaw standard. AB submitted that her claim was based upon all of the events giving rise to the 14 incidents identified in her witness statement and that her claim did not depend upon her proving to the criminal standard or the Briginshaw standard (or at all) that she had been raped and/or physically assaulted.
AB also submitted that the judge did not take into account all of the matters referred to in the 14 incidents alleged by her; that the judge did not make any findings on key aspects of her case (including the completion incident, AB’s perceptions of CD’s conduct and specific aspects of some of the incidents); and that the judge failed to determine the real issue in the case, which was whether AB suffered an injury arising out of or in the course of her employment with XYZ within the meaning of s 82 of the AC Act.
For the reasons which follow, the arguments advanced by AB under proposed grounds 1, 2 and 4 must be rejected.
First, the case AB seeks to make in this Court was not the case she advanced at trial.
As we noted earlier, AB’s claim, as expressed in her claim form, related both to the sexual assaults and allegations of bullying and harassment.

This description was essentially replicated in her statement of claim, and this was the basis upon which the trial was conducted, as was made clear by the judge’s statement at [12] of his Reasons.
As we have noted, the case at trial was essentially conducted on the premise that the repeated assaults (mostly sexual) produced AB’s psychiatric condition; however, it was also alleged by her that this was combined with bullying and harassment. The judge accepted that AB was entitled to rely upon this as a basis for her asserted incapacity.
However, what is now sought to be alleged is that the judge should have considered the entire conduct of XYZ and CD and the circumstances that prevailed (on this application described by AB as stressors) in the workplace over the three months from December to March. This was not the case run at trial, and the law as to raising a new point on appeal is well settled.[71]
[71]Suttor v Gundowda Pty Ltd (1950) 81 CLR 418, 438 (Latham CJ, Williams and Fullagar JJ).
The High Court said in Coulton v Holcombe:
To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.
…. In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this Court has firmly maintained the principle that the point cannot be taken afterwards: see Suttor v Gundowda Pty Ltd; Bloemen v The Commonwealth.[72]
[72](1986) 162 CLR 1, 7–8 (Gibbs CJ, Wilson, Brennan and Dawson JJ) (citations omitted). This principle has been applied in Green v Sommerville (1979) 141 CLR 594, 608 (Mason J); O’Brien v Komesaroff (1982) 150 CLR 310, 319 (Mason J); Water Board v Moustakas (1988) 180 CLR 491, 497 (Mason CJ, Wilson, Brennan and Dawson JJ); Banque Commerciale SA v Akhil Holdings Ltd (1990) 169 CLR 279, 284 (Mason CJ and Gaudron J); Whisprun v Dixon (2003) 200 ALR 447, 461 [51] (Gleeson CJ, McHugh and Gummow JJ)); Botsman v Bolitho (2018) 57 VR 68, 105 [167] (Tate, Whelan and Niall JJA); Commissioner of State Revenue v Mondous (2018) 55 VR 643, 661–2 [77]–[79] (McLeish JA).
As her final written submissions at trial demonstrate, AB’s case was that the question to be decided was whether she sustained an injury ‘arising out of or in the course of her employment with [XYZ] … by way of being sexually assaulted and subjected to abuse, bullying and harassment in the workplace by … [CD]’. Moreover, AB’s final submissions identified ‘the key facts in issue’ as concerning whether CD ‘engaged in some, or all, of the sexual misconduct as alleged by [AB] in the relevant period’. As AB put it to the judge, ‘[t]he main inquiry is whether sexual misconduct occurred on the part of Mr CD, which contributed in the requisite causal sense to Ms AB’s psychiatric injury’. AB did not advance any case of having suffered injury caused by her perception of some event or events which had not been shown to have occurred. AB’s case, as pleaded and run at trial, required her to prove the sexual assaults, abuse, bullying and harassment alleged by her, and that they gave rise to a compensable injury, with the emphasis being on the sexual assaults. There is simply no basis for permitting AB to now depart from the case she ran at trial.
Secondly, while there are authorities that admit of the possibility of a worker recovering no fault compensation as a result of a perception by the worker arising from some conduct which occurred in the workplace, those same authorities make it clear that, even though it is not for the court to determine where the truth lies in terms of the alleged conduct, the court must be satisfied that some conduct or circumstance actually occurred.[73] In the present case, it was heavily disputed that the events, now alleged to give rise to some unspecified perception in AB (alternatively, some perception on AB’s part that she was sexually assaulted and/or raped), actually occurred.
[73]State Transit Authority of New South Wales v Chemler [2007] NSWCA 249, [69] (Basten JA); St Mary’s School v Askwith [2011] VSCA 90, [12] (Ashley JA, with whom Warren CJ and Kyrou AJA agreed); Pulling v Yarra Ranges Shire Council [2018] VSC 248, [64] (Bell J).
Thirdly, we see no error in the judge’s references to, and application of, Briginshaw. More conventionally, his Honour might have referred to s 140(2) of the Evidence Act — the relevant provision which gives statutory force to part of what was said by Dixon J in Briginshaw. Plainly, the seriousness of AB’s allegations of sexual assault were such as to require the judge to take ‘the gravity of the matters alleged’ into account in deciding whether he was satisfied that those matters had been proved on the balance of probabilities.
Fourthly, to the extent that AB submitted that all the judge needed to consider was whether she had suffered injury arising out of her employment with XYZ, without the need for the judge to give any consideration to the act or circumstance of employment that may have caused that injury, that submission must be rejected. As the authorities in this area make plain, there must be some causal link between some workplace event or circumstance and an injury that is alleged to be work-related, before one can conclude (in the terms of the AC Act) that ‘there [has been] caused to a worker an injury arising out of or in the course of … employment’.[74]
[74]AC Act, s 82(1).
Fifthly, we are not persuaded that the judge failed to take into account any matter that formed part of the substance of AB’s claim. While the judge did not specifically summarise the events described by AB as the completion incident (the occasion when AB alleges that CD grabbed her front-on and put his arms around her), he described in detail the facts of, and circumstances surrounding, the incidents which were the real substance of AB’s case as run at trial.
Moreover, it was not feasible or practical for the judge to repeat in his reasons for judgment all of the detail of everything about which AB made complaint in her 75 page witness statement. In our view, the judge captured the essence of AB’s complaints in the Reasons. A more detailed recitation of the facts was not required. A fair reading of the Reasons demonstrates that the judge was alive to the substance of AB’s case and gave consideration to it in coming to his conclusions.
Sixthly, we are not persuaded that there was any failure by the judge to make relevant findings. While the judge concentrated on the matters which were at the heart of AB’s case — being the facts and circumstances giving rise to the nine alleged sexual assaults (rapes) and the two physical assaults — it is plain that, more generally, he was not satisfied that the claims of abuse, bullying and harassment in the workplace by CD had been proved by AB. Again, a fair reading of the entirety of the Reasons shows that the judge simply was not persuaded that AB’s description of events in the workplace could be accepted.
Seventhly, we do not accept AB’s complaints in this Court about the judge’s use of the word ‘rape’ when considering AB’s allegations of sexual assault. In using the word ‘rape’, the judge was doing no more than repeating the use of that descriptor to describe the sexual assaults allegedly occasioned upon AB by CD. True it is that AB framed her complaint as one of sexual assault without her consent. Equally true is the fact that counsel for XYZ both in cross-examination of AB and other witnesses and in submissions to the judge in the course of the trial repetitively and exhaustively described the alleged sexual assaults as rape. The judge used both expressions in the course of his Reasons. It was, perhaps, unfortunate that the judge did not use more neutral terminology as the confusion between a criminal charge of rape and a civil complaint of sexual assault could lead to confusion — especially where a party is self-represented. However, there is nothing in the Reasons which suggests that the judge considered AB’s case on the basis that she was required to prove that the crime of rape (including all of its constituent elements) had been committed in order to establish her entitlement to no fault compensation. To the contrary, it is clear that the judge treated the case as it was presented to him by AB.
Eighthly, the medical evidence called and tendered at trial by AB was predicated on the acceptance of her having given an accurate history of the multiple sexual and physical assaults of which she complained. Even if it could be said that some event[75] or part thereof had not been properly considered or ruled upon by the judge, the absence of any medical evidence that it (or part thereof) was a cause of compensable injury meant that her claim for compensable injury could not be established. AB did not advance a case at trial (and the evidence did not establish) that she suffered any compensable injury as a result of what we might now refer to as, at best, the peripheral detail referred to in her witness statement.
[75]For example, the completion incident.
Finally, AB’s submission that the judge, ‘having devoted some 29 pages of the judgment to making findings on [XYZ’s] innumerable false issues and irrelevant matters in the years after [she] ceased to be employed at XYZ, failed to then make findings of matters critical to the determination of [her] statutory benefits claim’, must be rejected. Two points should be made:
(1)First, as we have already said, the judge did not fail to make any finding on any matter critical to the determination of AB’s claim.
(2)Secondly, the issues raised by the communications and matters that occurred between AB and CD following the termination of AB’s employment were not irrelevant. They bore directly on the credit of AB and were capable of affecting the question of whether she could be accepted as a witness of credit and whether her evidence of the circumstances of her employment could be accepted as credible and reliable. There can be no criticism of the judge for engaging in the detailed analysis he engaged in for the purpose of considering whether or not he could accept AB’s evidence.

Proposed grounds 5 and 7–10

In proposed grounds 5 and 7–10, AB makes complaint about the judge’s determination of credit issues against her. Under these proposed grounds, AB:
•complains about an absence of contemporaneous email evidence covering the period of her employment with XYZ (proposed ground 5);
•complains about the judge’s reasoning and finding that AB was the owner of the angellaM address (proposed grounds 7 and 8);
•contends that the judge failed to consider her evidence and arguments about her mental health and the behaviour and activities of CD (proposed ground 9); and
•contends that the judge made findings against her credit on erroneous factual bases and/or by failing to take into account AB’s evidence (proposed ground 10).
There is no substance in any of these proposed grounds. The judge had the benefit of seeing and hearing AB give evidence over three days during the course of the trial. In considering the question of AB’s credit, this Court is at a considerable disadvantage from that enjoyed by the judge. In such circumstances, as has been said many times before, this Court would not lightly overturn such findings.

The absence of contemporaneous emails issue

AB’s complaint about the judge’s findings having been made in the absence of contemporaneous email evidence covering the period of her employment with XYZ appears to be premised on the notion that more contemporaneous emails covering this period might have revealed complaints prior to 20 March 2008 about the sexual assaults and other conduct AB alleges against CD. There is no substance in this point: first, notwithstanding the detail of her description of events occurring between November 2007 and March 2008, AB did not give evidence at trial of any emails, or other documents, having been created which may have assisted her case; and secondly, in a case where each side’s folders of emails were patently incomplete, one might ask (at least rhetorically) what else could the judge do but decide the case on the available evidence and inferences open to be drawn by him?

The angellaM issue

On the angellaM issue, the judge noted that XYZ’s submission at trial was that AB was the source of the angellaM emails. He also noted that no expert material was called to track the origin of these emails.[76] His Honour then said:
AB denied that she was [angellaM] or knew of her. She did not seek to explain how [angellaM] could come to know of the line in CD’s email to her on 23 October 2009 at 4:11 pm.
Considering the evidence before the court, I am required to make a finding on the balance of probabilities as to whether or not the email of [angellaM] was in fact an email from AB. The evidence regarding the duplication in the quoted line tells strongly in favour of it being so. That was an email between CD and AB only. It makes logical sense to me that it was extracted and used by AB when she drafted the email as [angellaM]. This is much more likely than the other 2 scenarios. Namely that the email was from a third party. This would be an absolutely remarkable coincidence and I find unlikely in the extreme. The other possibility is that CD sent the email to himself. I consider this equally unlikely as there is no benefit to be gained by CD from this email. It does not indict AB’s behaviour but rather casts CD’s behaviour in a poor light. Further, when regard is had to the [angellaM] emails, it can be seen that she also purportedly knows about AB going to TT. Given that AB had made up the fiction of TT, the only source of such knowledge is realistically AB. For these reasons I find that AB was the author of the [angellaM] emails.[77]
[76]Reasons, [143]–[144].
[77]Ibid [145]–[146].
Having looked at the evidence for ourselves, we are not persuaded that the judge erred in his conclusion that AB was the source of the angellaM emails. Having said that, his Honour’s conclusions about the source of the angellaM emails was only one small part of his Honour’s reasoning about AB’s credit. Even if it could be concluded that his Honour erred in some relevant way in relation to his reasoning or conclusion about the source of the angellaM emails, there is no real prospect that any such error would vitiate his Honour’s ultimate conclusions about AB’s credit. In truth, the judge’s adverse credit findings in relation to AB were largely (and, in our respectful view, properly) founded upon the extensive deceptions perpetrated by AB in relation to the alleged Cabcharge and TT incidents, and not on whether AB was the source of any of the angellaM emails.

Did the judge fail to consider AB’s evidence and arguments?

In appropriately detailed and logically presented reasons for judgment, the judge identified and dealt with the issues presented to him for adjudication by the parties at trial. At appropriate points in the Reasons, the judge identified each party’s evidence, each party’s submissions on the topic, and then set out his findings and/or conclusions on the issue. In so doing, the judge demonstrated that he gave appropriate consideration to the evidence and the submissions (including AB’s evidence and AB’s submissions). A fair reading of the Reasons does not disclose any failure on the part of the judge to consider AB’s evidence or arguments as they were presented at trial. So, for example, the judge recorded AB’s submission that she had engaged in the lying, manipulative and deceptive behaviour admitted by her, not to extort money from CD, but so as to ‘repair her reputation’ and/or ‘redress the power imbalance’ between herself and CD.[78]
[78]Ibid [96].
The real complaint AB has in this Court about the judge’s treatment of her evidence and submissions is that, largely, the judge did not accept that evidence or those submissions. The judge gave detailed reasons for not accepting AB’s evidence. AB’s submissions at trial were based upon the premise that her evidence would be accepted by the judge. The judge’s failure to accept AB’s evidence essentially mandated his Honour’s rejection of the submissions made by her at trial predicated on that evidence. We see no relevant error in the judge’s approach.

The use of CD’s lies

Given that AB is unrepresented on this application and proposed ground 9 raises the issue of CD’s credit we should comment on one other aspect of the judge’s Reasons.
The judge held at [66] of his Reasons that in assessing the reliability of the evidence of CD, his two lies as to his whereabouts on 28 December 2007 and 12 March 2008 could be used in assessing his overall credibility.
The first lie related to the compactus incident — the first of the alleged sexual assaults. The judge, at [42] of his Reasons, stated that in the course of the Magistrates’ Court proceeding when the allegations were put to him (ie of sexual assault of AB), CD denied that he had been in the office at 360 Collins Street on 28 December 2007; he said that he had been in Dromana, at his holiday house. Phone records demonstrated, to the contrary, that he was in Melbourne and at 360 Collins Street that day. According to the judge: ‘[f]aced with this [proposition], CD accepted that he was at work that day. However, he denied that there was any sexual contact between he and AB.’
The second lie related to the head flicking incident. The judge at [65] of his Reasons noted that CD denied being in the office at that time. However, as the judge noted, phone records ‘placed him at 360 Collins Street at around 10:30 pm on that night’ and ‘[c]onfronted with the phone records, CD then admitted that it was likely that he was at the office that night, but denied there was any “head-flicking incident”.’[79]
[79]Ibid [66].
The judge correctly used this body of evidence as part of his conclusion at [221] of his Reasons that ‘[o]verall I consider his evidence to be unreliable and I do not consider him a witness of truth.’
In our view, this did not go far enough. In certain circumstances in a criminal trial, a lie may be used as evidence of guilt, as explained by the High Court in Edwards v The Queen[80] and Zoneff v The Queen.[81]
[80](1993) 178 CLR 193 (‘Edwards’).
[81](2000) 200 CLR 234 (‘Zoneff’). See also in R v Quist (2017) 127 SASR 471.
The same principle applies, with some modification, in a civil trial. In a defamation case, Amalgamated Television Services Pty Ltd v Marsden, the NSW Court of Appeal (Beazley, Giles and Santow JJA) said as follows:
Lies may also amount to an admission by conduct. The question as to when this is the case more frequently arises in a criminal case than in a civil case and in that context is often considered under the label of ‘corroborative evidence’ — that is as evidence which can be used by the Crown in aid of proof of guilt.
…
In R v Liddy, Mullighan J said at [242]–[243]:
It is unnecessary to set out the circumstances in which a deliberate lie told by an accused person may amount to positive evidence of guilt as opposed to adversely reflecting upon the accused’s credibility. The telling of relevant lies is a piece of circumstantial evidence from which an adverse inference of guilt may be drawn if the lie is told out of a consciousness of guilt and no other rational inference may be drawn.
The concept that ‘no other rational inference may be drawn’ is a concept of the criminal law, necessitated by the standard of proof beyond reasonable doubt. In a civil case, it is sufficient in our view for a lie to be accepted as an admission of guilt, if that is the more probable inference to be drawn.[82]
[82][2002] NSWCA 419, [82], [87]–[88] (‘Marsden’). See also Kuhl vZurich Financial Services Australia Ltd (2011) 243 CLR 361, 386–7 [64] (Heydon, Crennan and Bell JJ).

The use of the two lies as an admission by conduct (as opposed to going to CD’s credit) was not raised at the trial, and was not specifically mentioned in the written closing submissions drawn by pro bono counsel. Nor is it mentioned in the proposed (expansive) grounds of appeal. We also appreciate that this was a difficult trial to manage, with many issues to be considered in determining the end result, and that this Court possesses the undoubted virtue of appellate hindsight.
However, given CD’s lies were relied upon by AB at the trial, we think that the judge should have considered whether they (in addition to being used in relation to CD’s credit) were probative as to the probability of the occurrence of the compactus and head flicking incidents as described by AB. This was particularly so as AB was self-represented, and the point was one of some nuance.
There was no issue that CD had lied about his whereabouts (which was highly germane to the question of his conduct towards AB) in respect of both incidents. However, the criminal authorities emphasise that there may be many reasons why a person may lie other than out of concern that the truth would implicate that person in the conduct alleged.[83] So, it is necessary to consider other reasons which explain why CD may have lied, ‘including to bolster a true defence, to conceal disgraceful conduct, or out of panic or confusion’.[84]
[83]Paraphrasing the High Court’s words in Edwards (1993) 178 CLR 193, 211 and Zoneff (2000) 200 CLR 234, 244 [15]–[17].
[84]Lang v The Queen (2023) 97 ALJR 758, 785 [166] (Gordon and Edelman JJ).
In a civil case, the question is, as the court in Marsden pointed out, what is the more probable inference to be drawn from the telling of the lie(s).
After reflection, we do not think that either lie (considered individually or together) amounts to an admission by conduct. In particular, it is highly arguable — indeed at least as equally likely — that CD, given the breadth of the accusations against him, simply lied by denying everything so as to escape what he perceived to be a series of unjust accusations, and not because he wished to avoid being implicated as responsible for the conduct as alleged by AB.
Moreover, even if, contrary to our conclusion, the lies did constitute an admission by conduct, they were simply part of a complex evidentiary mix and required analysis by the judge of all the other surrounding circumstances — including AB’s credit, voluminous contemporaneous documentary material, and the application of s 140(2) of the Evidence Act. And, of course, this Court recognises that the judge had the distinct, if not overwhelming advantage in an oath versus oath case of seeing each witness and reaching a decision as to the veracity of the competing versions of the two incidents.
We are not satisfied that the failure to address this issue resulted in any injustice to AB.

Were the credit findings made on an erroneous factual basis?

Much of AB’s complaint turns upon the judge’s findings as to her credibility (and, for that matter, the credibility of CD). The principles to be applied in such a case on an appeal have been set out in a number of well-known and understood decisions of the High Court such as Warren v Coombes,[85] Fox v Percy,[86] more recently Robinson Helicopter Company Incorporated v McDermott,[87] and Lee v Lee.[88] The propositions contained in these cases were summarised by this Court in Box Hill Institute of TAFE v Johnson:[89]
The principles that apply to such a ground of appeal are well established, and for the purposes of this case, can be conveniently summarised as follows:
(1)The appeal before the court comes by way of re-hearing. Accordingly, the court is required to examine the record and to give the judgment which in its opinion ought to have been given at first instance.[90]
(2)Subject to (3) and (4) below, in general, an appellate court is in as good a position as the trial judge to decide on the proper inferences to be drawn from facts which are undisputed, or which, having been disputed, are established on the findings of the trial judge. In deciding the proper inference that is to be drawn, the appellate court should give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, it must give effect to it.[91]
(3)In applying those principles, the appellate court should make due allowance for the advantages that are available to the trial judge, and in particular, the advantage the trial judge has in evaluating the credibility and reliability of witnesses, and of gaining an appreciation of the evidence, and the import of it, as it is given.[92]
(4)In particular, in cases in which a judge’s findings of facts are dependent on the judge’s assessment of the character and credibility of the witnesses, the advantage enjoyed by the judge in that respect extends to inferences that are drawn in that context.[93]
(5)Where the judge reaches a conclusion as to the evidence of a witness or witnesses of one party, such a conclusion may be demonstrated to be incorrect, if it is contrary to incontrovertible facts or uncontested testimony, or if (in a rare case) such a conclusion is either ‘glaringly improbable’ or ‘contrary to compelling inferences’.[94]
[85](1979) 142 CLR 531, 537 (Gibbs ACJ, Jacobs and Murphy JJ).
[86](2003) 214 CLR 118, 125–6 [23] (Gleeson CJ, Gummow and Kirby JJ).
[87](2016) 90 ALJR 679, 686–7 [43] (French CJ, Bell, Keane, Nettle and Gordon JJ).
[88](2019) 266 CLR 129, 148–9 [55] (Bell, Gageler, Nettle and Edelman JJ).
[89][2015] VSCA 245, [36] (Warren CJ, Hansen and Kaye JJA).
[90]Warren v Coombes (1979) 142 CLR 531, 537 (Gibbs ACJ, Jacobs and Murphy JJ); CSR Limited & Anor v Della Maddalena (2006) 224 ALR 1, 7 [16] (Kirby J); Allesch v Maunz (2000) 203 CLR 172, 181 (Gaudron, McHugh, Gummow and Hayne JJ).
[91]Warren v Coombes (1979) 142 CLR 531, 551 (Gibbs ACJ, Jacobs and Murphy JJ).
[92]Fox v Percy (2003) 214 CLR 118, 126 [23] (Gleeson CJ, Gummow and Kirby JJ); Abalos v Australian Postal Commission (1990) 171 CLR 167, 179 (McHugh J).
[93]Louth v Diprose (1992) 175 CLR 612, 626 (Mason CJ), 633 (Deane J), 639–40 (Dawson, Gaudron and McHugh JJ); McIntosh v Johnson (2013) 37 VR 301, 315 [73] (Buchanan and Whelan JJA and Hargrave AJA).
[94]Fox v Percy (2003) 214 CLR 118, 128 [28]–[29]; Devries v Australian Postal Commission (1993) 177 CLR 472, 479.
AB’s complaints about the judge’s credit findings being made on an erroneous factual basis fail largely for the reasons given in relation to the angellaM issue. While AB might cavil with some of the minute detail associated with some of the incidents that were the subject of very detailed evidence at trial, undermining a few small facts does not assist in undermining conclusions that were primarily based upon the perpetration of large and extensive deceptions by AB in her dealings with CD and XYZ in relation to the Cabcharge and TT incidents.
As we have already said, we do not enjoy the significant advantage enjoyed by the judge in having seen and heard the witnesses giving evidence over the course of an 11 day trial. That said, having read the evidence for ourselves, we are not persuaded that there was any error in the judge’s conclusion that the evidence given at trial (and, in particular, the evidence of AB, which was critical to the resolution of the case) did not establish on the balance of probabilities that the conduct of CD alleged by AB to have occurred during the course of her employment with XYZ actually occurred. His Honour’s conclusion was neither ‘glaringly improbable’ nor ‘contrary to compelling inferences’.

Proposed ground 3

Under proposed ground 3, AB contends that the judge failed to give proper weight to emails she sent to CD on 20 and 26 March 2008. These were the emails that referred to CD allegedly ‘dragging [her] up to level 35 for sex at [CD’s] demand’, AB having provided ‘crap labour (and sex)’, and AB’s assertion that CD ‘didn’t think [she] should have choices on level 35’. There is no substance in this proposed ground of appeal, nor in AB’s complaints about the judge’s treatment of the emails relied upon by her.
The judge dealt with the question of what was to be made of emails from AB to CD which suggested a sexual element in their relationship at Reasons [82] and [225]. In the context of the whole of the evidence led at trial, we see no error in the judge’s treatment of, and conclusions in respect of, this evidence. Plainly, the judge considered the question of CD’s denial of any sexual relationship in 2007/2008 as a matter going to CD’s credit and the consistency of his evidence. His Honour was not, however, prepared to conclude that CD’s denials on this issue, when considered with all of the other evidence called at trial, resulted in AB having satisfied the evidential burden imposed on her to establish her case on the balance of probabilities.

Proposed ground 6

In proposed ground 6, AB makes complaint about the conduct of XYZ’s trial counsel. Complaint is made about XYZ’s counsel referring to s 128 of the Evidence Act at the commencement of the trial in relation to AB’s evidence and particular admissions of criminal conduct said to have been made by AB at the trial of the Magistrates’ Court proceeding. Specifically, it was submitted by XYZ’s trial counsel that AB might require a certificate under s 128 of the Evidence Act and that she may also need to obtain some independent advice from a criminal barrister.
Additionally, AB makes complaint about suggestions of criminal conduct that were put to her in cross-examination, and which were later withdrawn; as well as complaints about submissions made to the judge about AB having changed her evidence, and on the topic of the correct legal test for causation in a claim for statutory benefits under s 82(1) of the AC Act.
It may be that it was unwise for trial counsel to commence her submissions by referring to a matter (that may or may not have arisen in the conduct of the trial) involving the risk of AB’s testimony tending to prove she had committed an offence and the associated issue of the provision of a certificate under s 128 of the Evidence Act. Essentially, this was a matter for AB, bearing in mind that no application had been made under the section by her counsel in the Magistrates’ Court hearing where she was cross-examined for six days. It was, presumably, mentioned by counsel so that, if necessary, pro bono counsel could be engaged (if available) on AB’s behalf to consider the issue; nevertheless, one can understand AB’s disquiet as to this point being raised at the commencement of the hearing.
That said, it was not productive of any unfairness to AB.
As to the other complaints, having read the various parts of the transcript about which AB makes complaint under this proposed ground of appeal, we are unpersuaded that XYZ’s trial counsel did anything in the conduct of the trial that would now justify this Court in setting aside the judge’s orders dismissing AB’s proceeding.
In fact, to the opposite effect of that contended for by AB, there were occasions during the trial when XYZ’s counsel took steps to correct a matter that would otherwise have operated to the detriment of AB. For example, at one stage in her evidence, AB appeared to agree with a proposition that, as a result of her false representations, CD had in fact paid her a $50,000 sign-on bonus and a further sum of $15,000. After this evidence was given, and following a conference with CD, XYZ’s trial counsel told the judge that no such moneys were ever paid by CD to AB, resulting in the judge so concluding at Reasons [165].Whilst it would have been desirable for trial counsel to have obtained those instructions before she put the proposition to AB, the record was appropriately corrected.
In summary, we see nothing improper in anything XYZ’s trial counsel submitted to the judge, and nothing in the cross-examination of AB, which might now justify this Court in granting leave to appeal or allowing AB’s appeal.

Proposed ground 11

In proposed ground 11, AB makes complaint that the judge failed to accord her procedural fairness, in that he took into account matters which had not been relied upon at trial and/or matters which had not been put to her in cross-examination without providing her with the opportunity to comment or respond to that material. In her written case in this Court, AB identified material in 23 of the 229 paragraphs of the Reasons as falling within this complaint. Having reviewed all of the material for ourselves, we are unpersuaded that there was any denial of procedural fairness in the trial of this proceeding.
First, while it may be accepted that some of the documents in the paragraphs of the Reasons referred to by AB were not individually and specifically put to AB in cross-examination, there is no doubt that AB was aware of this material, it having been exchanged prior to trial. Moreover, as the trial transcript demonstrates, AB had a detailed familiarity with the documents to which she now refers. There was nothing to stop her from providing any evidence, answer or explanation about any of them at trial if she had so desired.
Secondly, XYZ’s case was squarely put to AB during the course of the three days over which she was cross-examined. Each aspect of the case advanced by XYZ (including those parts which were upheld by the judge) was put to AB in some detail, a number of them on multiple occasions during the course of her cross-examination. It is plain from the transcript that AB was under no misapprehension about the case XYZ advanced at trial, including XYZ’s submission that AB should not be believed because of the ‘protracted period of interaction between AB and CD over more than two years, during which AB made numerous false allegations and attempts to obtain money and employment from CD’.
Of necessity, not all of the documents tendered by the parties at trial could be individually put to AB and CD during the course of their evidence. There is no doubt, however, that the parties’ cases were clearly identified by the exchange of materials prior to trial and that those cases were both put in detail to the principal witnesses during their cross-examination. While AB makes a complaint that certain emails relied upon by the judge to show that her lies and deceptions were perpetrated for the purpose of extorting money from CD and/or XYZ were not specifically put to her, it is clear that this was a hotly contested issue at trial on which AB was extensively cross-examined. In short we are not persuaded that any failure to take AB to any specific email during the course of the trial led to any denial of procedural unfairness.
Finally, on this topic, we would conclude that, in any event, it was not AB’s motive for engaging in sustained attempts to deceive which caused the judge to not accept her evidence: rather, it was the fact and extent of the deceptions themselves which ultimately led to the judge to decide that he could not accept AB’s evidence.

Conclusion

For the reasons given above, each of AB’s proposed grounds of appeal must be rejected. Moreover, AB’s proposed appeal does not have any real prospect of success. Accordingly, AB’s application for leave to appeal must be refused.[95]
[95]Supreme Court Act 1986, s 14C.
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[2024] VSCA 31

14 March 2024