Adnyamathanha Traditional Lands Assn v Topez (Formerly Nanschild) - [2016] SADC 69

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Interlocutory Application)
ADNYAMATHANHA TRADITIONAL LANDS ASSN & ORS v TOPEZ (FORMERLY NANSCHILD)
[2016] SADC 69
Reasons for Decision of His Honour Auxiliary Judge Clayton
1 July 2016
DEFAMATION
The parties executed a Deed of Settlement and Release settling a claim for defamation. The Deed required the appellant to consent to judgment for $200,000 but provided that the respondents would accept a lesser sum if that sum was paid by the date specified. When the action was listed before a judge orders were made ‘in terms of’ the Deed. The Notification of Proceedings records ‘Order in terms of Deed of Settlement and Release attached initialled by his Honour this day'.
Appellant made default in payment. She argued that a press release issued by the respondent breached a non-disparagement clause in the Deed. Later she argued that the signatories on the Deed for the corporate plaintiff were not authorised to sign, that the relevant clause in the Deed was a penalty, that the Deed was unconscionable and she had been induced to enter into the Deed by misrepresentation. By a notice she purported to cancel the Deed.
By an Interlocutory Application the plaintiff applied for judgment for $200,000.
The defendant/appellant applied for an extension of time within which to file a counterclaim and for leave to withdraw a Notice of Discontinuance of the Defence and an extension of time to file a Defence.
The Master entered judgment in favour of the plaintiffs for $200,000. Dismissed the defendant's application for extension of time to bring counterclaim and dismissed the defendant's application for leave to withdraw Notice of Discontinuance of Defence.
Appeal from the decision of the Master
Held:
Judgment had already been entered by Judge. Plaintiff’s application to the Master for judgment unnecessary for $200,000.
No basis to set Deed aside.
Defendant’s application to file Defence and Counterclaim inappropriate in the light of pre-existing judgment and without merit.
Appeal dismissed.
Fermiscan v James [2009] NSWSC 546; Federation Insurance Ltd v Wasson (1987) 163 CLR 303; Zenith Engineering Pty Ltd v Queensland Crane and Machinery Pty Ltd [2001] 2 Qd R 114; Mindshare Communications Ltd v Orleans Investments Pty Ltd [2007] NSWSC 1352; Forlyle Pty Ltd v Tiver [2007] SASC 464; Wilson Four Pty Ltd v Sihoto [2014] QSC 257; Micarone v Perpetual Trustees (1999) 75 SASR 1; Harvey v Phillips (1956) 95 CLR 235; Bridge v Campbell Discount Co Ltd [1962] AC 600; Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; Louth v Diprose (1992) 175 CLR 621; Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) 38 SR (NSW) 632; Associated Newspapers Ltd v Bancks (1951) 83 CLR 322; Shevill v Builders Licensing Board (1982) 149 CLR 620; DTR Nominees Pty Ltd v Mona Holmes Pty Ltd (1978) 138 CLR 423; Lachlan v HP Mercantile Pty Ltd (2015) NSWCA 130, considered.

ADNYAMATHANHA TRADITIONAL LANDS ASSN & ORS v TOPEZ (FORMERLY NANSCHILD)
[2016] SADC 69

This is an appeal from two decisions of a Master published by email on 11 March 2016 and 21 March 2016.
The first respondent is the registered native title body corporate in respect of all Adnyamathanha land. The second to sixth respondents are all Adnyamathanha traditional owners and native title holders of Adnyamathanha land in the Flinders Ranges. The second respondent is the chair of the first respondent. All of the second to sixth respondents are officeholders in either the first plaintiff or associated companies.
The appellant claims that she is an Adnyamathanha woman. She told the court that her spirit was welcomed back to Adnyamathanha in March 2012 by an esteemed elder[1]. She said that she was well and truly represented and in deep relationship with many many Adnyamathanha people[2]. The respondents dispute her claim. The resolution of that dispute is not relevant to the appeal.
[1] T9.
[2] T10.
The orders of the Master which are subject to the appeal are:
·An order made 11 March 2016 that judgment be entered by consent for the plaintiffs pursuant to Clause 4 of a Deed of Settlement in the sum of $200,000 which sum is inclusive of interest and costs to the time of the Deed.
·An order made on 21 March 2016 fixing the costs on the application as a lump sum at $5000.
The grounds of appeal are extensive. Many of the stated grounds are irrelevant to the issues raised by the appeal. I propose to deal only with those grounds which are relevant to the determination of the appeal.
The background to the appeal.
The parties have been in dispute since at least the beginning of 2013. This appeal is not a forum for the resolution of all the complaints of the appellant. The court is only required to determine an appeal from two specific orders.
The action was commenced in 2013 when the respondents sued the appellant and another woman for defamation. The action was listed for trial and there was a mediation conducted by a judge. Both the plaintiffs and Ms Topez, who was formerly known as Deborah Nanschild, had competent legal representation during the negotiations. A settlement was arrived at and carefully recorded in a Deed of Settlement and Release made on 19 September 2014.
Prior to the action being listed for trial a significant event had occurred. On 23 June 2014 Ms Topez filed a Notice of Discontinuance (FDN 35) whereby she withdrew, discontinued and abandoned ‘all the defences filed on her behalf in the action in response to the plaintiffs’ statements’. The Master correctly observed that thereafter she was deemed to have admitted the claim[3].
[3] Reasons for Decision (No 5) [12].
The Deed of Settlement and Release.
In clause 3.1 of the Deed which the parties entered into the plaintiffs agreed ‘to accept the payment of $15,000 in full and final satisfaction of all claims, costs and rights arising from or in any way connected with the facts forming the basis of the action.’ Ms Topez agreed to pay 25% of the settlement sum within 6 months, a further 35% within 12 months and the full settlement sum no later than two years from the date of execution of the Deed.
Clause 4 of the Deed provided:
Disposal of action
4.1Nanschild (the name by which Topez was known at that time) must unconditionally consent to the Court:
4.1.1. Entering judgment in the Action in favour of the Plaintiffs in respect of the whole of the action; and
4.1.2. Ordering that Nanschild pays to the Plaintiffs a sum of $200,000, which sum shall be inclusive of interest and costs. (The Consent Judgment)
4.2 …
4.3. The Plaintiffs undertake to Nanschild that they will not enforce the Consent Judgment against Nanschild provided that Nanschild pays the Settlement Sum in the terms set out in clause 3 above, and complies with the undertakings in clause 7 hereafter.
By clause 6.1 Ms Topez agreed to sign an apology and retraction of the statements which gave rise to the action in a form annexed to the Deed and she consented to the plaintiffs publishing the apology in any way they saw fit
By clause 7 Ms Topez undertook that she would not repeat any of the defamatory allegations nor promote or otherwise be involved in the repeating of any of them by any other person. She also undertook not to be involved in a specified type of festival or cultural event and undertook that she would not misrepresent the terms of the settlement to any third party.
Clause 8 is a non disparagement clause which provided:
The Parties agree that they will not disparage, adversely comment on or call into disrepute by words, or conduct, any Party to the Deed or any person associated with any Party to the Deed.
Clause 9 dealt with default in payment. It provided that if the whole of the settlement sum or any part thereof was not paid within the time specified or if Ms Topez breached clauses 7 or 8 then the plaintiffs would be released from their undertaking not to enforce the Consent Judgment against Ms Topez and the plaintiffs could at their election take such steps as they may be advised to enforce The Consent Judgment.
The Apology and Retraction is Annexure A to the Deed. It is addressed to the plaintiffs and Cramond Pty Ltd which is the trustee of the Adnyamathanha Traditional Lands Trust. The apology reads:
I, Deborah Lea Nanschild, the First Defendant in defamation/malicious falsehood proceedings brought in the South Australian District Court by You and ATLA as Plaintiffs, acknowledge that I sent a letter dated 11 February 2013 to the Office of the Registrar of Indigenous Corporations (ORIC) and also circulated a copy to five Adnyamathanha people.
That letter, and also a subsequent letter of my published in the Transcontinental newspaper, contained defamatory allegations about You and ATLA, as set out in the Statement of Claim.
I am truly sorry for what I did and wholly retract the allegations. I recognise that they have caused harm and distress to ATLA and to each one of You.
I sincerely and unconditionally apologise to all plaintiffs and to Cramond Pty Ltd.
I undertake not to repeat any of the defamatory allegations, nor promote or otherwise be involved in the repeating of any of them by any other person”.
The proceedings before his Honour Judge Stretton.
The action was listed before his Honour Judge Stretton on 19 September 2014. The plaintiffs and Ms Topez were both represented by counsel. The second defendant appeared in person. Once the settlement had been reached Ms Topez had returned to her home interstate and she was not present when the action was called on before the judge.
The transcript of the proceedings records that counsel for the plaintiffs told his Honour:
The matter has resolved in relation to both defendants. There is a deed of settlement and release that has been signed by the plaintiffs and by the first defendant (Ms Topez) for filing in the court on the basis that there’s an agreement in relation to the first defendant for judgment to be entered in the sum of $200,000 inclusive of interest and costs. There is an undertaking that the plaintiffs will not enforce the consent judgment provided that the first defendant pays the settlement sum in the terms set out in clause 3, which is that she will pay the sum of $15,000 by - the first 25% within 6 months, the second 25% within 12 months.
Counsel explained other provisions in the Deed and told the judge that there was a signed document.
His Honour asked counsel for Ms Topez whether, on behalf of his client he agreed to those terms. Counsel for Ms Topez replied ‘That’s correct’. His Honour asked: ‘So there is a binding agreement which you now convey by virtue of your brief and your agency thereof?’ to which counsel replied ‘That’s confirmed’[4].
[4] T3 29.
Counsel for the plaintiffs advised the court that he was authorised to provide two ‘comfort letters’. Counsel said:
The second letter is simply to confirm that Vincent Coulthard and Janet Coulthard as chairperson and Deputy chairperson of ATLA, are duly authorised to execute the Deed of Settlement and Release on behalf of ATLA.
The authority of those persons to execute the Deed is one of the matters raised by the appellant on this appeal. There was no suggestion before Judge Stretton that the Deed had not been properly executed by the first plaintiff.
In the case of the second defendant the relevant document is simply called a Deed of Settlement, although it does include a release. That document is not relevant for the purpose of this appeal.
There was a discussion about filing the Deeds in court and his Honour enquired:
Do you want me to make orders in terms of these deeds or are you happy for the deed simply to be filed and then relied upon if there is any dispute down the track?
Significantly counsel for the plaintiffs responded:
I seek your Honour’s orders in the terms of the consent judgment and receiving the undertakings.
By that statement counsel for the plaintiffs indicated that his clients were not content for the Deed to simply be placed on the file and counsel specifically applied for an order in terms of The Consent Judgment. In response to that statement His Honour announced:
I make orders in terms of these deeds dated 19 September 2014
His Honour congratulated the parties on the settlement.
The Notification of Proceedings by the Judicial Support Officer recorded:
Dispute settled at Mediation with Judge Cuthbertson, therefore trial no longer needed.
Order in terms of Deed of Settlement and Release and Deed of Settlement, attached, initialled by His Honour this day.
Annexed to the Notification of Proceedings is a copy of the Deed of Settlement and Release signed by Ms Topez on which was endorsed the judge’s fiat:
Orders made in these terms
In my opinion his Honour had by that order entered The Consent Judgment contemplated by paragraph 4 of the Deed. The only terms to which his Honour could have referred by his fiat were those required to give effect to clauses 3.1 and 4.1.2 - The Consent Judgment.
Is clause 8 of the Deed a penalty.
The appellant seeks to set aside the Deed on the basis that clause 8 of the Deed is a penalty.
Annexed to the defendants Rejoinder to the Plaintiffs Written Submissions filed 28 September 2015 is a letter dated 17 September 2014 from Campbell Law, Ms Topez’s solicitors, to the plaintiffs’ solicitor. The letter advised that Ms Topez had instructed her solicitors to propose a settlement on a commercial basis in order to avoid the expense of the trial. The solicitors pointed out that Ms Topez had withdrawn her Defence thereby admitting the facts in the Statement of Claim so that the only issue to be determined was quantum, that is how much money Ms Topez should pay to the plaintiffs in compensation. The solicitors said:
We have considered the relevant authorities and consider that the likely award of damages for your clients would be a total figure of between $100,000 and $200,000. You may not agree.
Reference was made to Ms Topez’s impecuniosity and the fact that the plaintiffs had no prospect of recovery. On behalf of Ms Topez the solicitors offered a global figure of $10,000 payable over twelve months. Ms Topez also offered to publish an apology by a letter to the editor in the Transcontinental newspaper.
There is no other evidence as to the likely quantum of the plaintiffs’ claim. The statement by Ms Topez’s solicitors that the likely range of damages was $100,000-$200,000 was a genuine pre-estimate of damages. Ms Topez has not established that the judgment sum of $200,000 was a penalty. Additionally the form in which the settlement was structured means that the judgment sum was not a penalty.
As I have mentioned judgment has already been entered by consent and the plaintiffs no longer need to rely on the Deed to have judgment entered. Even if the clause was a penalty it would now be too late for that to be of any consequence.
I return to discuss this topic later in the context of the arguments of the parties and the reasons of the Master.
The events following the settlement.
Hostilities between the parties commenced almost immediately after the Deed had been executed.
Sometime during the period between 20 and 26 September 2014 the first plaintiff published a newsletter in the following terms:
Adnyamathanha people’s association going from strength to strength
The Adnyamathanha Traditional Lands Association has been commended by the Registrar of ORIC and has achieved very favourable outcomes to it’s (sic) defamation proceedings in the District Court in Adelaide.
Senator Xenophon asked questions of ORIC under parliamentary privilege, he did not approach ATLA in any way prior to making outlandish statements in the Senate Estimates Committee, however, Mr Bevan the Registrar of ORIC said that there are 718 members of ATLA, and he had received complaints from 4 members. When he sent in an examiner to conduct an examination into ATLA’s affairs, who has the power of the Registrar himself, the examiner, “formed the view that the standard of corporate governance and financial management of ATLA was sound and that the directors were carrying out their functions with the required degree of care and diligence. The examiners concluded the complaints made to the Registrar could not be substantiated”
Chairperson Vince Coulthard said, “I am pleased for the ATLA board who work so hard to make a difference for all Adnyamathanha people. If only the Senator had taken the time to ask he would have been saved all this trouble and embarrassment.”
“Last Friday we also settled proceedings with Deborah Nanschild and Lynne Edmondson on very favourable terms. We believe the Senators questions were based on their defamatory comments.”
Both women totally retracted all the terrible things said in Deborah Nanschild’s letter to ORIC: about ATLA, about its Chairperson, Vincent Coulthard, about the other Plaintiffs. Both of them “sincerely and unconditionally apologised for the harm and distress” they had caused to all the Plaintiffs and to Cramond Pty Ltd (ATLA’s wholly owned subsidiary).
They gave undertakings to the Plaintiffs and to the Court, including not to repeat any of the defamatory allegations ever again and not to run any more events like “Hands Around the World” without ATLA’s permission.
In addition, Deborah Nanschild and Lynne Edmondson consented to District Court judgments against each of them awarding ATLA and the other Plaintiffs substantial damages. However, the Plaintiffs agreed to waive payment of most of these damages, provided Deborah Nanschild and Lynne Edmondson paid significantly reduced amounts to ATLA over the next two years and complied with their undertakings.
“ATLA is very pleased to have these Court-ordered outcomes. We have always known that ATLA is doing the right thing, and they are sorry the Plaintiffs were ever put through this whole stressful situation. We look forward to putting all of this behind us and moving on with the important work of ATLA, to protect and preserve our culture, language and land.” Mr Coulthard said today
On 11 October 2014 the solicitor for Ms Nanschild wrote to the plaintiffs’ solicitors referring to the press release. The letter stated that the statement in the newsletter that Ms Nanschild ‘sincerely and unconditionally apologised for the harm and distress’ was not a correct quote from the apology.
The statements in the apology were ‘I am truly sorry for what I did and wholly retract the allegations. I recognise they have caused harm and distress to ATLA and to each one of you. I sincerely and unconditionally apologise to all plaintiffs and to Cramond Pty Ltd’.
The deviation in the newsletter from the precise wording of the apology is inconsequential. Nevertheless it is that relatively trivial deviation which has precipitated the present dispute between the parties.
The solicitor also said that the following paragraph in the press release was incorrect. That is:
They gave undertakings to the Plaintiffs and to the Court, including not repeat any of the defamatory allegations ever again and not to run any more events like “Hands around the World” without ATLA’s permission.
The solicitors noted that clause 7.2 of the Deed provided:
That she will not at any time for the next five years promote, facilitate or in any way engage in any type of festival or cultural event including a kind similar to Hands Around the World anywhere within the external boundaries of Adnyamathanha numbers 1, 2, and 3 Native Title Claim areas, including Rawnsley Park.
The solicitors pointed out that there was no mention of ATLA permission in clause 7.2 and there is a prohibition limit of five years.

While there is a divergence from the wording of the apology there is no detrimental difference in the meaning.
The solicitor’s letter requested the Directors of ATLA to consider the press release and issue a corrected press release to rectify the errors outlined.
The plaintiffs did not respond to the solicitor’s letter.
Over six months later, on 1 May 2015, the appellant, having changed her name to Mulara Topez, served on the plaintiffs a document headed ‘Notice of Termination of Deed of Settlement and Release (Contract) (Notice 1)’.
The notice referred to Mr Campbell’s letter of 11 October 2014 requiring the plaintiffs to make corrections to the press release and complained that the press release ‘does not accurately state my apology and retraction that I made in good faith’. It also asserted that the press release breached clause 8, the non disparagement clause. That was referred to in the notice as ‘first fundamental breach’. The notice stated:
The press release makes scurrilous claims that associate other people and organisations with the District Court Action and with me that are not true.
The press release makes scurrilous claims that misrepresent me and defame my reputation and by so doing ‘Mr Vincent Coulthard and by association the ATLA Directors’ have acted in a malicious and vexatious manner with intent to do harm.
The notice then raised another issue stating:
Further, a letter published by Mr Richard Bradshaw to my agent, Mr Tim Campbell on 19 September 2014 stated that Mr Vincent Coulthard and Ms Janet Coulthard were duly authorised to sign on behalf of ATLA without proof of claim. This authority to sign is not accepted by myself and my Executors, Heirs, Successors, Nominees, Assigns, Enjoinders and Agents as a true and accurate statement. An authority to prove the authorisation of this matter by the ATLA directors was not presented by “the above addressed parties (Failure).
The notice set out further assertions and stated:
The culmination of both the evidence of the first Fundamental Breach and now the Failure (to provide any evidence to the contrary) gives me cause to hereby issue notice of the termination of the Deed of Settlement and Release (contract).Notice 1.
The document then notified the plaintiffs of a request by Ms Topez that on receipt of the notice the ATLA directors take the necessary measures to ‘Dismissal and Discontinuance of the Deed of Settlement and Release’ and the unconditional and unequivocal release of Deborah Lea Nanschild also known as Mulara Topez from The Consent Judgment.
There was a statement that the plaintiffs should not consider those measures ‘to be conclusive in any way’.
After making further statements advising that liability for costs would not be accepted the notice concluded:
Any continuation of, or further legal action taken by ATLA and/or the above addressed parties and its agents, successors, nominees, assigns and/or enjoinders to recover any amount in relation to the terminated Deed of Settlement and Release (contract) will be met most vigorously in light of this Notice, the Breach of Contract and the Failure.
Leaving to one side the unnecessary verbiage of the document the substantive topics in the notice are allegations that the press release breached s 8 of the non-disparagement clause, Mr Bradshaw incorrectly advised Mr Campbell that Mr and Mrs Coulthard were duly authorised to sign the Deed, the plaintiffs had ignored Ms Topez correspondence and Ms Topez purported to terminate the Deed.
Despite its apparent formality the notice had no effect in law. There was no basis for the Deed to be terminated. Most significantly judgment had already been entered.
The plaintiffs’ interlocutory application for judgment and the defendant’s interlocutory applications.
On 29 June 2015 the plaintiffs’ solicitor Mr Bradshaw filed an affidavit ‘in support of the plaintiffs interlocutory application for judgment against the first defendant’. The affidavit referred to the orders of Judge Stretton made on 19 September 2014 and referred to the Deed of Settlement and Release. Mr Bradshaw said he had been informed that Ms Topez had failed to make the first payment of 25% of the settlement sum in accordance with clause 3.3 of the Deed and he applied for judgment to be entered pursuant to paragraph 4.1 of the Deed of Settlement and Release.5
5 FDN 56
Apparently Mr Bradshaw did not appreciate that the effect of the order of Judge Stretton had been to enter judgment.
The affidavit was accompanied by an interlocutory application applying for judgment in favour of the plaintiffs against the first defendant for the sum of $200,000 inclusive of interest and costs[5].
[5] FDN 57.
On 24 July 2015 Ms Topez filed her own interlocutory application[6] in which she applied for an extension of time to file a counterclaim. That application was inappropriate because Ms Topez had withdrawn her defence on 23 June 2014 and judgment had been entered by his Honour Judge Stretton on 19 September 2014.
[6] FDN 58.
The application of Ms Topez was supported by an affidavit sworn 5 August 2015 in which Ms Topez asserted a number of complaints. The topics included:
·The way in which the plaintiffs referred to the apology in the press release. Ms Topez claimed that the apology had been ‘misquoted, misrepresented or misused’.
·A complaint that the plaintiffs had not responded to the notice dated 11 October 2014 from Ms Topez’s solicitor requiring a correction of the statements.
·Assertions that the plaintiffs were in default of clause 8 of the deed, the non disparagement clause, because the publication does not accurately state her apology, the plaintiffs made no attempt to correct their publication upon request to do so, the plaintiffs made scurrilous claims that associate other people and organisations with the action and Ms Topez that were not true.
·An assertion that the plaintiffs made scurrilous claims that misrepresented Ms Topez and defamed her reputation and by doing so had acted in a malicious and vexatious manner with deliberate intent to cause her harm.
·An assertion that the plaintiffs had disparaged, adversely commented upon and called into disrepute Ms Topez reputation, actions and conduct in association with the deed.
·An assertion that the plaintiffs had breached the contract (which is referred to as a ‘fundamental breach’).
On 5 August 2015 Ms Topez issued a further interlocutory application seeking leave to withdraw the Notice of Discontinuance (of her defence filed 23 June 2014) and an extension of time to file a defence[7]. Because judgment had been entered by Judge Stretton it was too late for those applications. Those applications were irregular for many reasons which it is unnecessary to canvass at the moment.
[7] FDN 60.
That application was supported by a further affidavit in which Ms Topez advised that she withdrew her defence on 23 June 2014 under mitigating circumstances including the costs of continuing the action and the detrimental harm that could have been caused to the Adnyamathanha people if the action went to trial. She asserted that the first plaintiff did not ‘produce the proper legal authority as a corporation … to pursue this legal action’ and that the signatures on the Deed for the plaintiff were invalid rendering the contract invalid.
In that affidavit Ms Topez again complained about the press release and asserted that the plaintiffs were in default of the non-disparagement provision. The affidavit contained allegations but did not set out admissible evidence in support. Ms Topez alleged that the plaintiffs had breached the contract and that she was not obliged to proceed any further with its execution. Ms Topez said the plaintiffs did not respond to her Notice, that the time period for response had expired and she alleged that the plaintiffs’ silence was assent to the notice. Even if those allegations were all correct the judgment against her would stand.
In the affidavit Ms Topez claimed that The Deed of Settlement and Release was null and void because of:
·       the improper conduct of the plaintiffs
·       the breach of contract
·       the invalid signatures for the first plaintiff on the contract; and
·       the plaintiffs assent to the termination notice.
There is no merit in any of those claims.
In her affidavit Ms Topez again sought permission to file a defence and lodge a counterclaim. Leaving aside the merits of the application the orders sought were not permissible because the action had proceeded to judgment.
I have read submissions of Ms Topez filed on 11 September 2015[8]. There is nothing in those submissions which cause me to change my views.
[8] FDN 63.
I have also read the plaintiffs written submissions[9]. I accept the plaintiffs submission that the first plaintiff and the second plaintiff did not disparage Ms Topez by publishing the press release and that the press release does not ‘misrepresent’ the first defendant’s apology as Ms Topez alleges. The press release speaks for itself. It does not track the exact wording of the apology but the deviation from the exact wording is minor and there is no change to the meaning of the apology.
[9] FDN 64.
I find that the press release did not contain the various implications that Ms Topez alleged and that if any of the alleged implications do arise they did not constitute disparagement.
Clause 6 of the Deed acknowledged that the plaintiffs could publish Ms Topez apology ‘in any way they see fit’. I accept that the press release was within the bounds of what was permitted. I accept the submission that there is no evidence of language intended or calculated to injure or damage the reputation of Ms Topez. Fermiscan v James[10].
[10] [2009] NSWSC 546 at [108].
It is not necessary for me to consider whether the defamation defences of absolute privilege and qualified privilege would apply to the publication of the press release.
I accept the plaintiffs submission that even if the first plaintiff had breached the non-disparagement clause such breach would have had no effect on Ms Topez obligation to consent to judgment as required by clause 4.1.2[11]. If there was a breach by the plaintiffs the appropriate remedy would be damages or an injunction. I do not accept that the non-disparagement clause was a ‘fundamental’ term of the Deed. Additionally the alleged breach of the clause was trivial not so serious as to give rise to a right to terminate[12].
[11] Written Submissions [14].
[12] Written Submissions [14.3].
Ms Topez argued that the Deed was unfair in that it ‘did not provide for the consequences of the plaintiffs default in dealing with the first defendant’s apology’. If the plaintiffs were in breach of the Deed the plaintiffs would have remedies which Ms Topez could pursue in a separate action. I accept the plaintiffs submission that the circumstances for that to occur have not been established[13].
[13] Written argument [16].
I do not accept Ms Topez submission that there is a ‘significant imbalance in the party’s rights and obligations’ under the Deed[14]. During the negotiations both parties were represented by competent legal practitioners. There is no evidence to suggest that Ms Topez was under a disadvantage. The Deed must be considered in context. It was the settlement of an uncontested claim by the plaintiffs that they had been defamed by Ms Topez.
[14] Appellant's submissions [14].
Ms Topez’s submission that the Deed was executed in circumstances that were unconscionable[15] is answered by the fact that Ms Topez had the benefit of legal advice in entering into the Deed. There is no evidence that the Deed is ‘unreasonable overreaching and one-sided’[16] or that there was ‘absence of meaningful choice to’ Ms Topez[17] or that the Deed is ‘unreasonably favourable’ to the plaintiffs[18]. There is no evidence that the plaintiffs exerted ‘undue influence and pressure’ or used ‘unfair tactics’[19]. The negotiations which led to the settlement were initiated by Ms Topez ‘s own solicitors who had significant input into the terms of the Deed.
[15] Submissions [12.5.3.1].
[16] Submissions [15.1].
[17] Submissions [15.2].
[18] Submissions [15.4].
[19] Submissions [15.6].
Ms Topez complained that she was under ‘considerable duress and distress to settle this matter to prevent a costly trial’[20]. There is no evidence to support that allegation. If there was that would not by itself be a ground for setting aside the Deed. Costs are an unfortunate incident of every civil trial. Nothing has occurred to remove Ms Topez’s obligation to consent to judgment as required by the Deed. More importantly judgment has already been entered.
[20] Submissions [15.3].
Ms Topez has argued that both the action and the Deed have not been properly authorised by the plaintiffs. The evidence does not make out that argument. Authority is established by the eighth affidavit of Mr Bradshaw sworn 11 November 2015. If the argument of Ms Topez was correct that would not be the end of the matter because there is the judgment entered by his Honour Judge Stretton with the consent of each party’s counsel. There is no evidence that counsel lacked authority to consent to judgment.
The learned Master from whose order the appeal lies was apparently not fully informed of the proceedings before his Honour Judge Stretton[21]. Presumably the parties had not taken his Honour to the transcript. It was unnecessary for the Master to enter judgment on the plaintiffs application[22] because that judgment had already been entered by Judge Stretton. However the order of the Master was appropriate to put the matter beyond doubt and confirm the situation.
[21] Reasons for Decision [22] and [23].
[22] FDN 57.
Ms Topez has made many complaints about the conduct of the plaintiffs subsequent to the entry of the judgment. For example the press release of which she complains was published after the judgment was entered into. She has referred to that as ‘of continuing malicious and vexatious disparagement by the plaintiffs with ongoing efforts to harm me after the Deed was signed, damages which have worldwide ramifications.’[23] If there is evidence of illegal or improper conduct following the entry of the judgment Ms Topez’s remedy lies in fresh proceedings, not the existing action. However, not wishing to encourage further proceedings I should intimate that I have not seen any evidence which would support fresh proceedings
[23] Affidavit filed 13 November 2015 [5].
Ms Topez has made complaints about the governance of the plaintiff corporation and the conduct of the plaintiffs and counsel. She complained that legislation has been breached and District Court Rules have not been followed[24]. In paragraph 6 of the affidavit Ms Topez asserted:
The conclusion to be drawn is that the plaintiffs and their legal counsel have acted recklessly. Their standard of conduct is unacceptable for the relative positions they hold and there has been a gross and deviant misuse of their positions. They have shown a reckless disregard towards the law and are guilty of reckless misconduct for intentionally violating the duty as directors of an aboriginal Corporation and in the case of the lawyers, for assisting them to do so. Their conduct has evinced disregard to the consequences for the members for breaching the CATSI Act, for breaching other Commonwealth laws and to my rights in breaching the contract.
[24] 7th Affidavit filed 23 November 2015 [3], [4] and [5].
They are serious allegations. Ms Topez has not produced evidence which supports those allegations. If there is such evidence that can be brought forward independently of these proceedings. So far as this appeal is concerned those allegations are irrelevant.
Ms Topez sought leave to file a counterclaim. Having regard to the fact that judgment has been entered a counterclaim in these present proceedings is inappropriate. If Ms Topez does have a meritorious claim and, as to which I make no comment, that would have to be the subject of separate proceedings.
I have considered the contents of paragraph 7 and following of Ms Topez’s 7^th affidavit filed 23 November 2015. The criticisms which she asserts are inconsequential in the context of this appeal. The allegations of Ms Topez have become more extreme as the matter has progressed. The reference in paragraph 17.8 to alleged breaches of the Public Service Act 1990 and the Privacy Act 1988 were quite irrelevant to the application before the master and this appeal.
If there was any want of authority on the part of the corporate plaintiff in entering into the Deed that became irrelevant as a consequence of the judgment to which counsel consented before his Honour Judge Stretton. The Master found that there was nothing about the execution of the Deed which made it illegal on any of the material presented by Ms Topez. He said that paragraphs 3.5 and 3.6 of her affidavit of 13 November 2015[25] ‘represent wild and baseless allegations’. There is no evidence before the court to suggest that the Master’s finding was not accurate.
[25] FDN 68.
Ms Topez complained that the press release was not consistent with the words of the apology so that there was a breach of clause 8 relating to non-disparagement. While the press release may not have followed the exact terms of the apology it did give effect to the overall meaning of the apology. The publication of a variation of the form of apology by itself did not amount to a breach of the Deed or give rise to any other cause of action. There was no significant change to the meaning of the apology. In any event I find that the press release did not amount to a breach of the non-disparagement clause. Even if it had amounted to a breach that would not be a reason for setting aside the judgment entered by Judge Stretton.
The reasons of the Master
In his reasons the Master considered the arguments of the parties. It is unnecessary for me to discuss the Master’s reasons extensively. By doing that I do not wish to disparage the significance of the Master’s careful consideration of the matter.
The Master held that even if the first defendant had breached the non disparagement clause, that would not render clause 8 unenforceable because all plaintiffs were not parties to the press release. He found that each other plaintiff had rights to enforce the Deed in that respect and referred to Federation Insurance v Wasson[26].
[26] (1987) 163 CLR 303 [121].
The Master found that clause 4.3 is not a penalty clause. He found that the first defendant acknowledged that she was liable to the amount of $200,000 and the plaintiffs agreed that she could pay a much lesser sum on terms to finalise the indebtedness but if she failed on those terms, then the existing consent judgment would be enforceable. He referred to the reasons of Pincus JA in Zenith Engineering Pty Ltd v Queensland Crane and Machinery Pty Ltd[27] where his Honour said:
In my opinion the law as it presently stands is correctly stated in Professor Rossiter’s chapter on relief against penalties in The Principles of Equity, (1996), edited by Professor Parkinson:
Where a stipulated sum is presently due and owing as a debt and the creditor grants the debtor an indulgence to pay the debt by instalments, it is not a penalty for the creditor to provide, as a condition of granting the indulgence, that the indulgence will be withdrawn if the debtor defaults in the payment of an instalment. However, this principle … has no application where, having regard to the substance and notwithstanding the form of the transaction, the stipulated sum is not owing as a present debt.
[27] [2001] 2 Qd R 114 at [9 ]:
The Master said that was clear from clause 4.1 of the Deed and referred to Lachlan v HP Mercantile Pty Ltd[28]. He said no new burden fell on Ms Topez as a consequence of the breach of the Deed payment terms[29].
[28] (2015) NSWCA 130.
[29] [124].
I respectfully agree with the Master’s finding. I have already discussed whether the clause is a penalty clause.

The Master dealt with Ms Topez’s submission that the Deed was executed in circumstances that were unconscionable. He noted that a judge had been available for the mediation and involved in the settlement of the dispute. The Master noted that there was no suggestion that Ms Topez could not speak to the judge on ‘tactics’ or that any ‘pressure’ was imposed on her by the plaintiffs. He noted that Ms Topez was represented. He found that there was no evidence of the assertions and he disregarded that allegation[30]. On this appeal Ms Topez has not pointed to any circumstances which suggest unconscionability. I respectfully agree with the findings of the Master.
[30] Reasons for Decision (No 5) [125] and [126].
The Master found that there was no adequate evidence of ‘unfair pressure’ on Ms Topez. He noted the trial was due to commence on 18 September 2015 and that the matter was resolved on 19 September 2015 at 2:30 PM. He noted that Ms Topez believed that the Deed was biased towards the plaintiffs. He found that none of that was admissible[31]. Nothing brought forward on the appeal establishes that Ms Topez was subjected to ‘unfair pressure’. By withdrawing her defence Ms Topez had admitted liability for damages for defamation and the settlement negotiations had been initiated by Ms Topez’s own solicitor. The Master noted that the Deed incorporated the points proposed by Ms Topez in her solicitor’s letter of 17 September 2014[32].
[31] Reasons for Decision (No 5) [130].
[32] Reasons for Decision (No 5) [132] and [133].
As to Ms Topez argument that the first plaintiff did not have authority to bring the action or to resolve it by negotiation the Master found those allegations were answered by an affidavit of Mr Bradshaw, the plaintiffs’ solicitor, annexing the minutes of meetings. He found there was no argument that could be pursued by Ms Topez’s in that regard on the facts[33].
[33] Reasons for Decision (No 5) [135].
The Master rejected Ms Topez’s argument that there was a significant imbalance in the negotiating power of the parties. He found that the argument was not borne out by the evidence[34]. Nothing that I have been referred to demonstrates any imbalance in the negotiating power of the parties. Both Ms Topez and the plaintiffs were represented by competent solicitors and counsel.
[34] Reasons for Decision (No 5) [141].
The Master found that clause 8 of the Deed is not a fundamental term which would allow Ms Topez to assert that the contract was at an end merely because there are references to Ms Topez’s and the facts in the press release with which she did not agree. He referred to Mindshare Communications Ltd v Orleans Investments Pty Ltd[35].
[35] [2007] NSWSC 1352 at [137] and [140].
The Master also referred to the remarks of Debelle in Forlyle Pty Ltd v Tiver[36]. The Master noted that a settlement agreement allowed a party to enforce a judgment by consent embodying the terms of settlement[37]. He also noted that The Consent Judgment was final unless it was illegal, based on serious misrepresentation, non‑disclosure of material facts where the disclosure was required, duress, mistake, undue influence or other unconscionable conduct. None of those matters have been established in this case.
[36] [2007] SASC 464 at [14].
[37] Reasons for Decision (No 5) [154].
The Master noted that ordinarily breach of contract on a compromise is not a ground to set it aside. He referred to Wilson Four Pty Ltd v Sihoto[38] and to Harvey v Phillips[39] (Reasons for Decision [155]).
[38] [2014] QSC 257.
[39] (1956) 95 CLR 235 at [243]-[244]
The Master noted that the court does not exercise a jurisdiction to protect those entering into imprudent, foolish or onerous bargains or undertakings or generally set aside bargains simply because they are unfair, unjust, odorous or harsh. However none of those criteria have been made out this case.
The Master referred to Micarone v Perpetual Trustees[40]. He also referred to Bridge v Campbell Discount Co Ltd[41] where Viscount Simonds said:
‘Unconscionable’ must not be taken to be a panacea for adjusting any contract between competent persons when it shows a rough edge to one side or the other …
[40] (1999) 75 SASR 1 at 109
[41] [1962] AC 600 at 626.
The Master found that none of the evidence suggested that there were elements of unconscionability in this case. He referred to Commercial Bank of Australia Ltd v Amadio[42] and Louth v Diprose[43]. (Reasons for Decision [157]-[160]).
[42] (1983) 151 CLR 447 at 449, 461 and 474.
[43] (1992) 175 CLR 621 at 626.
The Master found there was no clear term defining the right to terminate the contract for breach so that termination could only arise if the breach was a repudiation of the agreement, that is, the breach of an essential term. He considered whether the term was an essential term of the contract. In Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd[44] where Jordan CJ said:
The test of essentiality is whether it appears from the general nature of the contract considered as a whole, or from some particular term or terms that the promise is of such importance to the promisee that he would not have entered into the contract unless he had been assured of a strict or substantial performance of the promise, as the case may be, and that this ought to have been apparent to the promisor.
[44] (1938) 38 SR (NSW) 632 at 642.
The Master referred to Associated Newspapers Ltd v Bancks[45] and Shevill v Builders Licensing Board[46] and the judgment of Stephen, Mason and Jacobs JJ in DTR Nominees Pty Ltd v Mona Holmes Pty Ltd[47] where it was said:
The quality of essentiality depends ... on a judgment which is made of the general nature of the contract and its particular provisions, a judgment which takes close account of the importance which the parties have attached to the provision as evidenced by the contract itself as applied to the surrounding circumstances.
[45] (1951) 83 CLR 322.
[46] (1982) 149 CLR 620 at 630.
[47] (1978) 138 CLR 423 at 431; [163].
The Master found that the breach of the disparagement clause alleged by Ms Topez was not a repudiation by the plaintiffs of the agreement nor a breach of an essential term. He said that Ms Topez rights were in a damages claim against the first plaintiff. He repeated that for reasons which he had already discussed the press release was not a disparagement of Ms Topez in any event[48]. I respectfully agree with all of those findings of the learned Master.
[48] Reasons for Decision (No 5) [165] and [166].
The Master expressed conclusions. He found that the media release was not a breach of clause 8 of the Deed. He said that even if he was wrong the alleged disparagement was trivial and in any event the media release was supported almost in its entirety by the apology[49]. I respectfully agree.
[49] Reasons for Decision (No 5) [167] and [168].
The Master found that the plaintiff was entitled to judgment on its application FDN 57. He found that the defendant was not entitled to an extension of time to bring a counterclaim on FDN 58, or entitled to leave to withdraw her Notice of Discontinuance (FDN 60). He found that there was no legal basis for the application of Ms Topez[50].
[50] Reasons for Decision (No 5) [169].
The Master noted that Ms Topez had not sought to set aside the Deed of Settlement and Release but had relied upon her Notice of Termination of the Deed of Settlement. The Master found that there was no legal basis to support an argument that the Notice of Termination had any effect beneficial to Ms Topez[51]. I respectfully agree with the Master. I have already found that Ms Topez’s notice was legally ineffective.
[51] Reasons for Decision (No 5) [170].
The Appeal
On the appeal the parties presented written submissions and extensive oral submissions. Ms Topez presented a clear and eloquent argument in support of her case.
Notwithstanding the extensive grounds of appeal and the comprehensive oral argument Ms Topez has failed to identify any basis upon which the judgment of the Master should be set aside.
To the extent that she complained about events subsequent to the execution of the Deed and the entry of judgment she has made generalised complaints which are unsupported by admissible evidence. If there is evidence to support post Deed complaints they are matters that would need to be dealt with in separate proceedings.
The claim of Ms Topez that there has been breach of clause 8 of the Deed relies upon the publication of the press release. I have already expressed my opinion that the press release was not a breach of clause 8, nor was it an essential term such as to give rise to a right to terminate the contract. I have expressed my opinion that the notice served by Ms Topez’s was ineffectual.
In addition to the press release Ms Topez has asserted defamatory and disparaging comments and photographs on Facebook pages there is no admissible evidence as to those matters. It is unclear who published the comments. They were after the judgment had been entered. Secondly the evidence does not establish any breach of clause 8 by any of the plaintiffs.
Ms Topez argued that the Deed was unauthorised and therefore not binding[52]. the Master found that Ms Topez had not proved lack of authority. There is nothing to suggest that the Master erred in making that finding. The affidavit of Mr Bradshaw establishes authority. In any event the Deed has been superseded by The Consent Judgment entered by his Honour Judge Stretton.
[52] T82 31.
Ms Topez argued that false representations induced her to sign the Deed[53]. There is no evidence of any representation that was false or that Ms Topez was induced to enter into the settlement by reason of a false representation. The negotiations were initiated by Ms Topez’s own solicitor.
[53] T82 32.
Ms Topez argued on the appeal that clause 8 of the Deed was an essential term. The Master found that not to be the case. I respectfully agree with the Master’s decision.
Ms Topez argued that even if clause 8 was not an essential term, the breach was of a serious intermediate term and the Deed was inequitable because there was no remedy for breach by the plaintiffs[54]. I reject that argument. In any event she has not established that there was any breach by the plaintiffs.
[54] Master's T83 5.
Ms Topez argued that she legally terminated the Deed[55]. I have found that was not the case.
[55] T83 6.
Ms Topez argued that there were serious misrepresentations by the plaintiffs and they have misled, deceived and called into question their conduct including unconscionable conduct. She says there have been breaches of the CATSI Act 2006, the Corporations Act, The Trade Practices Act, the Australian Consumer Law and the Australian Securities Investment Commission Act. She has not established that any of those Acts apply to this case. More importantly she has not adduced evidence of any breaches[56].
[56] T83 10.
Ms Topez submitted that the Deed was procedurally unfair and overall void and unenforceable[57]. There is no evidence to support that submission which I reject. It should not be forgotten that Ms Topez’s solicitor was involved in drafting the Deed.
[57] T84 4.
Ms Topez submitted that she did not consent to a summary judgment order[58]. I have already referred to the evidence relating to the occasion on which orders were made by his Honour Judge Stretton. By her counsel Ms Topez did consent to the judgment.
[58] T84 6.
Ms Topez argued that she was seeking to set aside the judgment[59]. She pointed out that the Rules of Court enable an application to set aside a judgment. However that was not the application which was made to the Master and it is not an application properly before the court. However there is no evidence which would justify the judgment being set aside.
[59] T84 8.
Ms Topez also sought to set aside the Deed[60]. Again that is not the application which was made and it is not an application which is properly before the court. Again there is no evidence which would justify an order setting aside the Deed.
[60] T84 18.
Ms Topez complained that the plaintiffs proceeded with the case on a non‑commercial basis[61]. She said she tried to settle on at least three occasions over 18 months and that she dropped her defence due to the cost involved. If that was correct none of those matters would constitute a reason to allow the appeal.
[61] T81 10.
Ms Topez justified her failure to make the payments due under the Deed saying that she would have paid if the plaintiffs had not published the press release and if they had removed disparaging comments and photographs from the Facebook pages[62]. She claimed it was the conduct of the plaintiffs in breaching a condition of the contract that caused her to withhold payment[63]. Ms Topez has not established the plaintiffs were in breach of contract. She was in default with the payments so that the full amount has become payable. Her argument overlooks the fact that the judgment itself had already been entered.
[62] T82 16.
[63] T82 24.
Ms Topez argued that the Deed was unauthorised and non-binding and that the plaintiffs had falsely represented and induced the appellants into signing the Deed[64]. There is no substance to those allegations.
[64] T82 31.
I have read the careful submissions of Mr Guthrie who appeared for the respondent and his written submissions. I do not wish to show any disrespect by not referring to the submissions in detail. On the basis of those submissions the appeal should be dismissed. It is unnecessary to descend to the detail of his submissions.
Mr Guthrie has satisfied me that the plaintiffs had authority to negotiate the settlement[65].
[65] T93 33 and following.
He supported the Master’s finding that unconscionable dealing does not protect against imprudent or foolish bargains[66]. He supported the Master’s finding that there was no breach of the non-disparagement provision in clause 8 by the respondents in publishing the press release[67]. He submitted that if there was a breach it was trivial. I accept that submission.
[66] T97 5.
[67] T104 25.
Conclusion.
The appeal from the order of the Master dated 11 March 2016 must be dismissed.
The appeal from the order of 21 March 2016 is consequential upon the 1^st appeal. No argument was put by Ms Topez. That appeal must be dismissed also.