Hugo v Affinity Education Group Pty Ltd - [2025] FedCFamC2G 1536

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hugo v Affinity Education Group Pty Ltd [2025] FedCFamC2G 1536

File number(s): DNG 1 of 2025

Judgment of: JUDGE LIVERIS

Date of judgment: 18 September 2025

Catchwords:
INDUSTRIAL LAW – PRACTICE AND PROCEDURE – application to strike out evidence of communications and documents made or prepared in connection with an attempt to negotiate a settlement of the dispute – whether any exceptions apply – whether the evidence and documents are admissible – application allowed – orders made striking the material out – orders made prohibiting inspection of the evidence and documents by any non-party

INDUSTRIAL LAW – PRACTICE AND PROCEDURE – application for security for costs – application of s 570 of the Fair Work Act 2009 (Cth) - whether the applicant’s unreasonable act or omission caused the other party to incur the costs – where the applicant is self-represented – application dismissed

Legislation:
Evidence Act 1995 (Cth) s 131

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 134, 169, 190, 191, 230, 231

Fair Work Act 2009 (Cth) s 340, 368, 570

Defamation Act 2006 (NT)

Cases cited:
Bahonko v Sterjov [2008] FCAFC 30

Finch v The Heat Group [2024] FedCFamC2G 161

Hutchinson v Comcare (No 2) [2017] FCA 370

Khoury v Macquarie Air Pty Ltd [2023] FedCFamC2G 992

Meshram v Bing Lee Electrics Pty Ltd (Costs) [2024] FedCFamC2F 543

Tamu v World Vision Australia (No 2) [2021] FCA 565

Roads Corp v Love [2010] VSC 581

Division: Division 2 General Federal Law

Date of hearing: 8 August 2025

Place: Darwin

Counsel for the Applicant: The Applicant appearing in person

Counsel for the Respondent: Ms Mendelson

Solicitor for the Respondent: Herbert Smith Freehills Kramer
ORDERS

DNG 1 of 2025

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
JOHANNA HUGO

Applicant

AND:
AFFINITY EDUCATION GROUP PTY LTD

Respondent

ORDER MADE BY:

JUDGE LIVERIS

DATE OF ORDER:

18 SEPTEMBER 2025

THE COURT ORDERS THAT:
1.Paragraphs 1(d) and 1(e) of Attachment X and Attachments Y and Z of the Applicant's Reply filed on 12 March 2025 be struck out.
2.Paragraphs 1(d) and 1(e) of Attachment X and Attachments Y and Z of the Applicant's Reply filed on 12 March 2025 not be available for inspection by any non-party.
3.The application in a proceeding filed by the Respondent on 9 June 2025 be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE LIVERIS

Johanna Hugo started employment with Affinity Education Group Pty Ltd on 11 June 2024. She was employed as a Lead Educator,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] FedCFamC2G 1536
Decision Date: 18 September 2025

CaseChat Overview and Summary

The case between Hugo and Affinity Education Group Pty Ltd involved an application to strike out evidence of communications and documents made or prepared in connection with an attempt to negotiate a settlement of the dispute, as well as an application for security for costs under section 570 of the Fair Work Act 2009. The primary focus was on whether any exceptions to the exclusion of such evidence applied under section 131(1) of the Evidence Act and whether the evidence and documents were admissible. Ms Hugo, who was self-represented, argued that exceptions such as sections 131(2)(d), (e) and (g) applied, but the court did not accept her submissions.

The court examined whether the communications or documents in question were marked as not being confidential or if they contradicted or qualified other evidence that had been admitted. Ms Hugo argued that the purpose of the attachments was not for use as admissions of guilt but rather to address inconsistencies she perceived. The court, however, found her arguments unpersuasive. The court's reasoning hinged on the objective of the legislation to enable parties to speak freely about all issues in a dispute when seeking compromise, and it determined that the evidence in question did not fall within the exceptions provided.

The court allowed the application to strike out the evidence and documents, making orders to prohibit inspection of the evidence and documents by any non-party. Furthermore, the court dismissed the application for security for costs, finding no basis to apply section 570 of the Fair Work Act in the circumstances presented. The court's final orders were to strike out the specified material and to prohibit any non-party from inspecting it.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 131(1) of the Evidence Act provides: 131 Exclusion of evidence of settlement negotiations(1) Evidence is not to be adduced of:(a)a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute; or(b)a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute. On 13 March 2025, Affinity Education Group's legal representatives wrote to Ms Hugo and drew her attention to s 131(1) of the Evidence Act. The letter pointed out, with reference to authority, some of the latitude that courts may give self-represented litigants in circumstances such as these, but summarised Affinity Education Group's position that the emails marked as Attachments Y and Z were not admissible. The letter also attached s 131, as well as relevant extracts of the Federal Circuit and Family Court of Australia Act 2021 (Cth), the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) and the Federal Court Rules 2011 (Cth). Ms Hugo was invited to withdraw paragraphs 1(d) and (e) of Attachment X, and Attachments Y and Z. The letter otherwise reserved Affinity Education Group's rights. The letter was sent to Ms Hugo by email on 13 March 2025, at 10.41am. On 13 March 2025 at 1.17pm Ms Hugo replied to Affinity Education Group's legal representatives, stating that she would not withdraw the reply. She asserted that the relevant portions of the reply fell within the exceptions to s 131(1), particularly s 131(2)(g). In her affidavit filed in response to the strike out application, Ms Hugo has asserted that s 131(2)(d), (e) and/or (g) apply. Those provisions are as follows:(2) Subsection (1) does not apply if:…(d)the communication or document included a statement to the effect that it was not to be treated as confidential; or(e)the evidence tends to contradict or to qualify evidence that has already been admitted about the course of an attempt to settle the dispute; or…(g)evidence that has been adduced in the proceeding, or an inference from evidence that has been adduced in the proceeding, is likely to mislead the court unless evidence of the communication or document is adduced to contradict or to qualify that evidence; or… It is trite that whether or not the privilege in s 131 applies to evidence or a communication does not depend on whether the communication is expressly marked without prejudice. A communication that is marked without prejudice may be privileged if the necessary statutory preconditions are satisfied and equally, a communication that is marked without prejudice but does not satisfy the preconditions will not attract privilege. The underlying objective is to enable parties to speak freely about all of the issues in a dispute when seeking compromise. In submissions, Ms Hugo said that the reason she pleaded paragraphs 1(d) and 1(e) of Attachment X and provided Attachment Y and Attachment Z was because she felt it was inconsistent. She disputed the purpose of Attachment Y was for use as an admission of guilt, but I do not accept that, as that is not how Ms Hugo sought to categorise the email in paragraph 1(d).

Decision

Reasons for decision

I will dismiss the application for security for costs.CONCLUSIONS I will make orders sought by Affinity Education Group in the strike out application. I will dismiss the application for security for costs.

Ratio Decidendi

Legal Principle Established

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File number(s):	DNG 1 of 2025
Judgment of:	JUDGE LIVERIS
Date of judgment:	18 September 2025
Catchwords:	INDUSTRIAL LAW – PRACTICE AND PROCEDURE – application to strike out evidence of communications and documents made or prepared in connection with an attempt to negotiate a settlement of the dispute – whether any exceptions apply – whether the evidence and documents are admissible – application allowed – orders made striking the material out – orders made prohibiting inspection of the evidence and documents by any non-party INDUSTRIAL LAW – PRACTICE AND PROCEDURE – application for security for costs – application of s 570 of the Fair Work Act 2009 (Cth) - whether the applicant’s unreasonable act or omission caused the other party to incur the costs – where the applicant is self-represented – application dismissed
Legislation:	Evidence Act 1995 (Cth) s 131 Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 134, 169, 190, 191, 230, 231 Fair Work Act 2009 (Cth) s 340, 368, 570 Defamation Act 2006 (NT)
Cases cited:	Bahonko v Sterjov [2008] FCAFC 30 Finch v The Heat Group [2024] FedCFamC2G 161 Hutchinson v Comcare (No 2) [2017] FCA 370 Khoury v Macquarie Air Pty Ltd [2023] FedCFamC2G 992 Meshram v Bing Lee Electrics Pty Ltd (Costs) [2024] FedCFamC2F 543 Tamu v World Vision Australia (No 2) [2021] FCA 565 Roads Corp v Love [2010] VSC 581
Division:	Division 2 General Federal Law
Date of hearing:	8 August 2025
Place:	Darwin
Counsel for the Applicant:	The Applicant appearing in person
Counsel for the Respondent:	Ms Mendelson
Solicitor for the Respondent:	Herbert Smith Freehills Kramer

DNG 1 of 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	JOHANNA HUGO Applicant
AND:	AFFINITY EDUCATION GROUP PTY LTD Respondent

ORDER MADE BY:	JUDGE LIVERIS
DATE OF ORDER:	18 SEPTEMBER 2025