Braam v BBC Hardware Ltd

[2020] VSCA 164

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2019 0096

MALCOLM ANTHONY BRAAM	Applicant
v
BBC HARDWARE LTD	Respondent

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JUDGES:	TATE and OSBORN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 May 2020
DATE OF JUDGMENT:	19 June 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 164
JUDGMENT APPEALED FROM:	Braam v BBC Hardware Ltd (Supreme Court of Victoria, Moore J, 9 August 2019)

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PRACTICE AND PROCEDURE – Application to set aside notice of discontinuance and minutes of consent orders, and reinstate proceeding – Whether settlement resulted from duress – Whether judge erred in finding no evidence of mental breakdown – Whether judge erred in finding no cogent evidence of vitiating conduct – Evidence of a rational, alternative reason for settlement – Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40, Dunwoodie v Teachers Mutual Bank Ltd [2014] NSWCA 24, discussed – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr MA Braam in person
For the Respondent	Mr JP Gorton QC with Ms M Norton	Minter Ellison

TATE JA

OSBORN JA:

TABLE OF CONTENTS

Introduction and summary......................................................................................	1
Bullying by co-worker .............................................................................................	3
Braam’s relationship with Borowski....................................................................	4
Common law proceeding for negligence................................................................	4
The directions hearing..............................................................................................	6
The settlement with BBC Hardware......................................................................	12
Orders made ..............................................................................................................	14
The judge’s reasons...................................................................................................	17
The grounds of appeal..............................................................................................	21
Did the judge err in finding there was no evidence that Braam suffered a mental breakdown as a result of the directions hearing? — Ground 1............	21
Did the judge err in finding that Braam had not established that Zammit AsJ engaged in any vitiating conduct? — Ground 2...................................................	26
Did the judge err in finding no cogent evidence of duress?— Grounds 3 & 4..	28
Conclusion.................................................................................................................	32

Introduction and summary

1. In 2006, the applicant, Malcolm Anthony Braam (‘Braam’) suffered a psychiatric injury as a result of bullying in his place of employment, an outlet of a hardware chain owned by the respondent, BBC Hardware Ltd (‘BBC Hardware’).  He brought a common law proceeding against BBC Hardware and also against a former friend, Daniel Borowski (‘Borowski’), for exacerbation of his psychiatric injury, and against his former solicitors, Nowicki Carbone Lawyers, for professional negligence.  A directions hearing before Zammit AsJ[1] was held on 4 December 2013 (‘the directions hearing’) some days after which Braam settled the proceeding against BBC Hardware for $100,000.  

   [1]Her Honour (now Incerti J) was an Associate Judge of the Supreme Court from March 2010 until her appointment as a Judge of the Trial Division in February 2015.   

1. About five years later, on 27 September 2018, Braam filed a summons seeking to set aside the minutes of consent orders that gave effect to the settlement of the proceeding against BBC Hardware and the notice of discontinuance he had filed.  Braam alleged that he had settled with BBC Hardware under duress caused by the alleged conduct of Zammit AsJ during the directions hearing, which he said caused…