Nalbandian v Commonwealth of Australia
[2017] FCA 45
•3 February 2017
FEDERAL COURT OF AUSTRALIA
Nalbandian v Commonwealth of Australia [2017] FCA 45
Appeal from: Nalbandian v Commonwealth of Australia (Australian Bureau of Statistics) [2016] FCCA 1605
Nalbandian v Commonwealth of Australia (Australian Bureau of Statistics) (No. 2) [2016] FCCA 1606
File number: NSD 1094 of 2016 Judge: BURLEY J Date of judgment: 3 February 2017 Catchwords: INDUSTRIAL LAW – whether deed of agreement is binding – whether applicant was under a special disability or economic duress – whether applicant was a false witness, was willing to manufacture evidence and exaggerated his state of mind
COSTS – whether costs order under Fair Work Act 2009 (Cth) s 570 is appropriate – whether institution and conduct of proceedings was vexatious and without reasonable cause
PRACTICE AND PROCEDURE – whether application for leave to appeal necessary where orders of primary judge dispositive of substantive rights of the parties – appeal by way of rehearing – position of appellate court in deciding questions of fact and credibility
Legislation: Age Discrimination Act 2004 (Cth)
Australian Human Rights Commission Act 1986 (Cth)
DisabilityDiscrimination Act 1992 (Cth)
Fair Work Act 2009 (Cth) ss 340, 570
Federal Court of Australia Act 1976 (Cth) s 24
Work, Health and Safety Act 2011 (Cth) s 19
Cases cited: Australia and New Zealand Banking Group Limited v Karam [2005] NSWCA 344; (2005) 64 NSWLR 149
Blomley v Ryan [1956] HCA 81; (1956) 99 CLR 362
CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172
Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40
Cubillo v Commonwealth of Australia [2001] FCA 1213; (2001) 112 FCR 455
Biogen Inc v Medeva PLC [1996] UKHL 18; [1997] RPC 1
Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Kakavas v Crown Melbourne Limited [2013] HCA 25; (2013) 250 CLR 392
Nalbandian v Commonwealth of Australia (Australian Bureau of Statistics) [2015] FCCA 2094
Nalbandian v Commonwealth of Australia (Australian Bureau of Statistics) [2016] FCCA 1605
Nalbandian v Commonwealth of Australia (Australian Bureau of Statistics) (No. 2) [2016] FCCA 1606
Trustee for the MTGI Trust v Johnston (No 2) [2016] FCAFC 190
Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531
Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1
Date of hearing: 9 December 2016 Registry: New South Wales Division: General Division National Practice Area: Employment and Industrial Relations Category: Catchwords Number of paragraphs: 100 Counsel for the Applicant: Mr A Duc Solicitor for the Applicant: Duc Legal Counsel for the Respondent: Mr Y Shariff with Mr T Kane Solicitor for the Respondent: Australian Government Solicitors ORDERS
NSD 1094 of 2016 BETWEEN: ANTHONY NALBANDIAN
Applicant
AND: COMMONWEALTH OF AUSTRALIA
(AUSTRALIAN BUREAU OF STATISTICS)Respondent
JUDGE:
BURLEY J
DATE OF ORDER:
3 FEBRUARY 2017
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The applicant pay the respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
1 INTRODUCTION
[1]
2 THE PRESENT PROCEEDINGS
[9]
3 THE PROCEEDINGS BEFORE THE FCCA
[11]
4 THE GROUNDS OF APPEAL
[13]
5 BACKGROUND FACTS
[15]
6 THE FIRST DECISION
[43]
7 LEGAL PRINCIPLES
[44]
8 GROUNDS OF APPEAL IN RELATION TO THE FIRST DECISION
[49]
8.1 Grounds 1, 2 and 8
[49]
8.1.1 Relevant legal principles
[53]
8.1.2 Consideration
[58]
8.2 Grounds 3 and 4 – findings as to the applicant’s complaints
[68]
8.2.1 Legal principles
[71]
8.2.2 Consideration
[73]
8.3 Ground 5 – error in finding that using a false witness was dishonest conduct
[80]
8.4 Ground 6 – error in finding that the applicant was willing to manufacture evidence in the witness box
[86]
8.5 Ground 7 – error in finding that the applicant grossly exaggerated his state of mind
[88]
8.6 Conclusion in relation to the First Decision
[92]
9. THE SECOND DECISION
[93]
9.1 Grounds 9 and 10
[93]
9.2 The second decision
[96]
10. DISPOSITION
[100]
BURLEY J:
1. INTRODUCTION
On 27 March 2015, the applicant executed a document entitled “Deed of Agreement: Deed in relation to an Agreement to resolve matters in dispute between Mr Anthony Nalbandian and Commonwealth of Australia, represented by Australian Bureau of Statistics” (Deed). The Deed included terms of settlement between the applicant, Mr Nalbandian, and the respondent, the Australian Bureau of Statistics (ABS), whereby, amongst other things, the applicant agreed that the Deed would operate as an absolute bar and defence to proceedings and would release the respondent from all claims, present and future, arising from his employment in return for an offer of voluntary redundancy.
Following execution of the Deed, the respondent paid to the applicant (net of tax) $28,546.00 (settlement sum) in accordance with its terms. The applicant, however, did not abandon or release the respondent from his claims, but rather on 16 May 2016 filed points of claim (points of claim) against the respondent in the Federal Circuit Court of Australia (FCCA). The points of claim alleged contravention of s 340 of the Fair Work Act 2009 (Cth), contravention of the DisabilityDiscrimination Act 1992 (Cth), breach of the applicant’s contract of employment with the respondent, negligence on the part of the respondent, contravention by the respondent of the ABS Enterprise Agreement, breach on the part of the respondent of the ABS Manual of Personnel Management and the invalidity of the Deed.
The respondent filed a response and cross-claim to the points of claim. The response pleaded that the Deed constituted a bar and complete defence to the proceedings. The cross-claim sought payment from the applicant under the terms of the Deed in the amount of $28,546.00.
The proceedings before the primary judge were listed for hearing on 29 June 2016. On that day the Court was invited by the parties to make an order for separate determination of the question of whether the Deed was binding on the applicant (separate question). It was agreed that if the Deed was so binding, then all of the applicant’s claims in the points of claim would necessarily fail. Accordingly, by consent, the primary judge proceeded to consider the affidavit evidence and hear cross-examination of the applicant in the context of a separate determination of the question of whether the Deed was binding.
The primary judge heard the matter and delivered his first decision, going to the separate question, on 29 June 2016 (first decision). He found that the Deed was binding on the applicant and dismissed the entirety of the applicant’s case; Nalbandian v Commonwealth of Australia (Australian Bureau of Statistics) [2016] FCCA 1605.
The orders made on 29 June 2016 were as follows:
(1)There be determined first and separately the question of whether the Deed of Agreement dated 27 March 2015 is binding on the applicant.
(2)The answer to the separate question is that the Deed of Agreement dated 27 March 2015 is binding on the applicant.
(3) The application is dismissed.
On 1 July 2016, the primary judge made the following order, amending order 2 above:
1. Pursuant to r.16.05(2)(e) of the Federal Circuit Court Rules 2001 (Cth), the orders entered on 29 June 2016 are amended by deleting order 2 and substituting:
2.The answer to the separate question is that the Deed of Agreement dated 27 March 2015 is binding on the applicant.
On 30 June 2016, the primary judge delivered judgment and orders on the cross-claim and in respect of costs; Nalbandian v Commonwealth of Australia (Australian Bureau of Statistics) (No. 2) [2016] FCCA 1606 (second decision). The orders made by the Court on that occasion were as follows:
(1) Judgment for the respondent against the applicant on the cross claim.
(2) The applicant to pay the respondent $28,541.00.
(3)The applicant to pay the costs of the respondent fixed in the amount of $35,000.00.
2. THE PRESENT PROCEEDINGS
The present proceedings are framed as an application for leave to appeal and, if leave is allowed, an appeal from each decision of the FCCA. Leave is said to be required because the separate question did not determine the entirety of the proceeding. The hearing was conducted on the basis that the application for leave to appeal and the appeal would be heard and determined at the same time.
The orders made by the primary judge dispose of the entirety of the applicant’s claim and the respondent’s cross-claim. It was plainly dispositive of the substantive rights of the parties and is not properly characterised as an interlocutory decision; Cubillo v Commonwealth of Australia [2001] FCA 1213; (2001) 112 FCR 455 at [182]. In my view, leave to appeal is unnecessary given the nature of the orders that have been made. Accordingly, I proceed to consider the substantive appeal below.
3. THE PROCEEDINGS BEFORE THE FCCA
The separate question for determination at the hearing was whether the Deed is binding on the applicant. The pleaded case advanced by the applicant in relation to whether the Deed is binding, was set out in the points of claim as follows:
G. Avoidance of the Deed of Release
1.The Deed of Release entered into by the Applicant following the Human Rights conciliation should be set aside.
2.The Deed was entered into while Mr Nalbandian was suffering from a mental disability, he was in hospital after the Police attended after a call he made to Beyond Blue.
3.The Applicant signed the Deed under economic pressure and pressure from the Respondent and the Human Rights conciliator. He felt he had no choice and had to capitulate.
4.The state of mind the Applicant was in is demonstrated by him witnessing the Deed in another person’s name.
5.The Deed should be avoided and Mr Nalbandian allowed to continue the proceedings.
At the hearing before the FCCA, at the request of the respondent, counsel for the applicant provided clarification that he advanced no case to the effect that he was legally incompetent at the time that he entered the Deed. Rather, his case was that it would be unconscionable for the Commonwealth to enforce the terms of the Deed because the applicant had a “special disability” of which the Commonwealth was sufficiently aware such that by entering into the Deed, the Commonwealth was acting unconscionably. The concession concerning legal incompetence was important, because the respondent had medical evidence concerning the applicant that he would have tendered had mental incompetence been an issue.
4. THE GROUNDS OF APPEAL
The grounds of appeal as filed were as follows:
1.The learned Judge erred in finding that the Deed of Agreement dated 27 March 2015 was binding on the Appellant.
2.That the learned Judge erred in finding that the Appellant was not under a special disability, and failed to take into account relevant considerations.
3.That the learned Judge erred in finding that the Appellant instituted complaints and proceedings to try and postpone the prospect of his dismissal and failed to take into account relevant considerations.
4.The learned Judge erred in finding that the Appellant's complaints and proceedings all lacked substance and were deliberate unmeritorious attempts by the applicant to prevent his dismissal, when the evidence on these matters were not fully tested in the hearing.
5.The learned Judge erred in finding that the Appellant used a false witness was dishonest conduct by Mr Nalbandian and failed to take into account relevant considerations that existed at the time of the signature.
6.The learned Judge erred in finding that Mr Nalbandian was willing to manufacture evidence in the witness box if he thought it would assist him.
7.The learned Judge erred in finding that Mr Nalbandian grossly exaggerated his state of mind, the circumstances of his admission and discharge from hospital and the alleged impact of his medication and failed to take into account relevant considerations.
8.The learned Judge erred in finding that the email communication sent to the Commonwealth on 27 March 2015 was not one which put the Commonwealth on notice of any special disability by the applicant, and failed to take into account other evidence of Mr Nalbandian’s dealings with the Respondent.
9.The learned Judge erred in awarding costs against the Appellant as the terms of s 570 of the Fair Work Act 2009 (Cth) had not been established, that is, the Appellant’s institution of the proceedings was vexatious and without reasonable cause.
10.The learned Judge erred in awarding costs against the Appellant as the terms of s 570 of the Fair Work Act 2009 (Cth) had not been established, that is, the Appellant’s conduct of the proceedings was vexatious and without reasonable cause.
11.As the learned Judge erred in finding that the Deed was binding, the learned Judge erred in finding that Mr Nalbandian was obliged to repay the Respondent $28,546.00.
Grounds 1 – 8 and 11 concern the first decision and grounds 9 and 10 concern the second decision. Pro bono counsel for the applicant, Mr Duc, accepted during argument that grounds 9 and 10 will stand or fall on the success or failure of grounds 1 through to 8. He abandoned reliance on ground 11.
5. BACKGROUND FACTS
A significant body of evidence underlay the briefly expressed reasons of the primary judge. In order to address the grounds of appeal, it is convenient to set out a chronology of the relevant facts which were before the primary judge and which were not in dispute on appeal.
On 10 April 2010, the applicant commenced working at the Australian Bureau of Statistics. On 31 January 2014, the applicant was issued with a written warning about unsatisfactory work performance. A performance assessment process was then commenced. On 24 March 2014, the applicant filed an application in the Fair Work Commission for an order to stop bullying (first FWC application). The performance assessment process was deferred pending the outcome of the first FWC application.
On 31 October 2014, the Fair Work Commission dismissed the first FWC application. The applicant then appealed that decision to the Full Bench of the Fair Work Commission. In the meantime, the performance assessment process resumed.
On 11 November 2014, the applicant lodged a complaint to Comcare alleging that the respondent had breached its primary duty of care under s 19 of the Work, Health and Safety Act 2011 (Cth).
On 20 January 2015, the Full Bench of the Fair Work Commission heard the appeal lodged by the applicant and reserved its decision.
On 2 February 2015, the applicant was informed that an interim report in relation to his performance assessment had been prepared and that the applicant had not attained the required standard of work performance.
On 24 February 2015, the respondent informed the applicant that his employment was being considered for termination.
On or about 27 February 2015, the applicant was informed by Comcare that it did not consider that the respondent had acted in breach of its duty of care.
On 4 March 2015, the applicant lodged a second application with the Fair Work Commission (second FWC application), alleging that the respondent had contravened the general protections provisions of the Fair Work Act 2009 (Cth).
On 5 March 2015, the applicant lodged a complaint with the Australian Human Rights Commission alleging that the respondent had contravened the Disability Discrimination Act 1992 (Cth), the Age Discrimination Act 2004 (Cth) and the Australian Human Rights Commission Act 1986 (Cth).
On 18 March 2015, Ms Annette van Gent, a solicitor working for the Marrickville Legal Centre, began representing the applicant. The applicant discontinued the second FWC application.
On 20 March 2015, the respondent informed Ms van Gent that a final decision would be made about what action to take in respect of the applicant’s under performance after 2.00 pm on 25 March 2015.
On Monday 23 March 2015, arrangements were made for a conciliation conference to be held between the parties on 25 March 2015 (HC 8). On 25 March 2015, a “without prejudice” email was sent to the applicant’s representative, Ms van Gent, enclosing a proposed Deed of Agreement.
The covering email said:
…
We are instructed to convey an offer of settlement to your client, Mr Nalbandian. The offer is entirely as set out in the attached Deed. Our client is not prepared to negotiate the terms of settlement and Mr Nalbandian should regard the offer as being made on a “take it or leave it” basis. The offer will lapse if we do not receive a scanned copy of a signed counterpart from Mr Nalbandian prior to 5pm today.
…
The Deed commenced with recitals that set out the background to the dispute. It explained that on 7 April 2010 the Commonwealth, represented by the Australian Bureau of Statistics, had employed the applicant. Following an unsatisfactory outcome of an informal performance review, the employer undertook formally to manage the applicant’s performance. The applicant claimed the review process involved unlawful discrimination and a breach of health and safety law. The respondent disputed this. The Deed further recited as follows:
C.On or about 25 March 2015 the parties agreed that the employment relationship was no longer sustainable, for reasons not attributable to either party.
D.The parties have agreed once and for all to resolve all matters potentially in dispute between them upon and subject to the terms and conditions below.
The relevant operative terms of the Deed are as follows:
2. Withdrawal of complaints
a.Within 1 working day of the execution of this Deed by both parties, the employee shall withdraw all and any complaints, requests or actions arising from or relating to his employment with the employer, including a complaint made to Comcare on or about November 2014 and a complaint made to the Australian Human Rights Commission on or about 5 March 2015, and will furnish evidence of same to the employer.
3. Voluntary redundancy
a.Within 2 working days of the execution of this Deed the Agency Head or a delegate will offer the employee voluntary redundancy in a manner consistent with the provisions of the Enterprise Agreement.
b.The offer of voluntary redundancy will be accompanied by the following information:
A.the amount of severance pay, pay in lieu of notice and paid up leave credits; and
B. taxation applying to the various payments.
…
4. No further complaint or action
a.The employee agrees that in light of the agreement to offer him a voluntary redundancy, this Deed shall be and operate as an absolute bar and defence.
b.The employee agrees that in light of the payment by the employer of the severance sum he will not pursue any further complaints directed to the Commonwealth or requiring a response from the Commonwealth, or take legal or administrative action concerning any issue arising out of his employment with the employer with any person, court, tribunal, commission or agency (including the employer).
c.In the event that the employee proposes to act in a manner contrary to clause 4.b of this Deed, he will first pay to the employer an amount nominated by the employer to compensate it for the likely administrative and legal costs associated with dealing with the complaint or action. To facilitate the employer’s assessment of likely costs, the employee will provide the employer with details of the grounds of any proposed complaint or action not less than 28 days prior to instituting the complaint or action.
d.The amount nominated by the employer for the purposes of clause 4.c of this Deed must not exceed the gross severance sum and must be the result of a bona fide attempt by the employer to estimate its administrative and legal costs associated with dealing with any proposed complaint or action.
e.If the employee pursues any complaint or action without first paying the employer any amount nominated under clause 4.c of this Deed, he agrees that he will repay to the employer the gross severance sum and that if he fails to do so the whole gross severance sum will be recoverable as a debt due to the Commonwealth.
…
6. Release and indemnity
a.The employee hereby releases the indemnified people from all actions, proceedings, claims and demands whatsoever that he now has or may in the future have against them or any of them for loss or damage sustained by him as a result of or arising out of the relevant occurrences.
b.The employee hereby indemnifies and undertakes at all times after the execution of this Deed to keep indemnified the indemnified people [the term “indemnified people” is defined and includes the respondent] against all complaints, actions, proceedings, claims and demands whatsoever that may be brought, made or prosecuted against them or any of them by any person acting on the employee’s behalf in respect of the relevant occurrences and against all costs, damages and expenses that may be incurred by the indemnified people in defending or settling those complaints, actions, proceedings, claims and demands.
c.This Deed shall be and operate as an absolute bar and defence to any further action, suit, claim or demand commenced or made by the employee or the employer in respect of the relevant occurrences and may be pleaded as such to any action, suit, claim or demand so commenced or made.
…
9.Technical provisions
9.1Deed freely entered
The employee acknowledges that:
a.he enters into this Deed freely and voluntarily based upon his own information, legal advice and investigation; …
The events of Friday 27 March 2015 are of considerable importance to the matters in issue in the present proceeding. It is necessary now to address the chronology by reference to the times at which various communications were sent during that day.
On Friday 27 March 2015 at 11.11 am, the respondent received an email from the applicant which informed the respondent that he had required emergency medical treatment and that, since 24 February 2015, he had been intimidated by the termination of his employment which had caused him severe anxiety, fear and panic attacks (27 March 2015 email). The applicant stated that he had provided four medical certificates to support the fact that he was unwell and referred to the pressure that he felt himself to be under as a result of his work situation and family illnesses, including the illness of his sister in Melbourne and of his younger son. The email attached the first page of a document entitled “medical/attendance certificate” dated 26 March 2015. It records that he attended the emergency department of a hospital, but contains no information as to the nature of the applicant’s medical condition. It did not attach the medical certificates to which it referred.
At 12.05 pm, the respondent sent to the applicant’s solicitor a formal notification of the decision to terminate his employment for underperformance. At 2.00 pm the applicant’s solicitor sent an email in which she confirmed that she had received a copy of the letter of termination, and stated that she had been instructed that the applicant intended to accept the offer represented by the Deed but that he had been delayed in signing it because of a deterioration of his health as a result of the stress associated with participating in the conciliation conference on 25 March 2015. The email said that the applicant desired to hear further information about his entitlements, and asked the respondent to reconsider its decision to withdraw its offer and terminate his employment.
At this point the offer made in the Deed had expired by effluxion of time. The applicant’s solicitor indicated that the applicant would be willing to accept the Deed if it was put to him again.
Shortly afterwards, at 2.05 pm, the respondent’s solicitors received an email from the applicant’s solicitor which attached a copy of the Deed signed by the applicant but not witnessed. At 2.13 pm, the respondent’s solicitors sent an email back to the solicitor for the applicant indicating that the applicant’s employment had now been terminated, but that it may be possible to reinstate the offer contained in the Deed. The email also said that this received offer would be made:
… despite the acts of bad faith over the last 24 hours (threatening to approach the media and suggestion of report of delegate to the police). I cannot make any promises and I am not prepared to try until I see a properly executed Deed counterpart for Mr Nalbandian. If the termination action has been processed by the payroll team then it will not be possible to reverse the action.
I have just spoken (twice) with Mr Cocks and he says that Mr Nalbandian has signed the Deed, but not witnessed it. We cannot advise our client to treat that as a properly executed counterpart, given Mr Nalbandian’s earlier indications that he would seek not to be bound by the terms of the Deed.
If Mr Nalbandian provides a scanned copy of a properly executed Deed counterpart then I will see what I can do.
(Mr Cocks acted as the conciliator and is from the Australian Human Rights Commission).
At 2.44 pm the solicitors for the respondent received an email attaching a copy of the Deed that was signed by the applicant and purported to have been witnessed by a person with the name “Bill Wong”. At 3.18 pm the solicitors for the respondent wrote an email to Mr Cocks, in which they said that the placement of the date and the applicant’s signature led them to the concern “that Mr Bill Wong did not in fact witness Mr Nalbandian execute the Deed, a concern that is heightened by Mr Nalbandian’s various indications that he does not intend to be bound by the terms of the Deed”. Somewhat presciently, the email went on to say:
My client has no wish to fund Mr Nalbandian in some long-winded pursuit of justice. What assurances can you and Ms van Gent provide that Mr Nalbandian has in fact turned a corner in his attitude and that if the ABS agrees to execute the Deed then its implementation will be the last they hear from him?
At 3.29 pm Mr Cocks responded in an email in which he indicated that the Commission makes it very clear to all complainants that if they sign an agreement ending an employment relationship that the agreement is a legal document which binds the parties and that there may be consequences for a breach.
At 3.36 pm Ms van Gent responded to the same email and said that she had discussed the Deed with Mr Nalbandian, that he was adamant that the document was signed in the presence of Mr Wong, who then signed it in his presence, that she had explained the importance for all parties of the Deed being properly executed and that he had repeatedly assured her that the Deed was signed by him in the manner described.
At 4.30 pm the applicant began taking steps to comply with the requirements of the Deed, which involved him withdrawing his complaints to the Australian Human Rights Commission and Comcare. An email received by the respondent, from the legal representative for the applicant, forwarded an email from the applicant himself in which he indicated in terms that he withdrew these complaints. At 5.17 pm a similar email was provided to the respondent indicating that the applicant intended to withdraw his complaints.
On 7 April 2015, the applicant further pursued the performance of the Deed by emailing the solicitor for the respondent directly urging that payment be made under the Deed as soon as possible.
On or about 8 April 2015, the applicant received $28,546 being the settlement sum in the Deed.
On 9 April 2015, the applicant sent a statutory declaration signed by himself and witnessed by a justice of the peace dated 8 April 2015 which relevantly provided as follows:
3. I was given extremely limited time to decide on the day. However, having received the termination of employment letter on 27 March 2015, caused an overwhelming feeling of panic and extreme fear of our sudden dire financial situation. When I was given the opportunity for a short term relief by signing the redundancy deed urgently, I wasted no time signing it for the sake of survival of my family, at least for the time being.
4. The deed to be completed required someone who can witness my signature. I walked outside my unit but could not find anyone who could help me. Due to the urgency of this deed to be signed and completed in time, and having tried my very best to find someone who could do this, in desperation I also signed the name Mr Bill Wong who does not exist.
5. My primary concern was our immediate survival being the sole breadwinner in my family. The fact was my employer put me in this catastrophic situation in the first place, and this depressive predicament coupled with extreme stress and overwhelming panic at the time, forced me to commit this act of desperation. Nevertheless, this makes the deed null and void.
6. THE FIRST DECISION
The primary judge’s first decision is relatively brief. Relevant portions of it are set out below:
4.The applicant’s case is that the applicant alleges he was suffering from a special disability at the time that he signed the deed, and the applicant alleges by reason of an email communication to the Commonwealth sent on the date that the deed was signed, that the Commonwealth was on notice of the alleged special disability by the applicant. The background to the proceedings are that the applicant was employed by the respondent from 7 April 2010, and pursuant to the deed of agreement that was signed by the applicant on 27 March 2015, the applicant’s employment was terminated by consent, and he was made redundant on 31 March 2015.
5.Over a substantial period, the applicant was the subject of a performance review for unsatisfactory work. The applicant embarked upon a course of complaints and proceedings to try and postpone the prospect of his dismissal. I find that the applicant’s unsatisfactory work was the cause of the steps taken to dismiss the applicant. I find that the applicant’s complaints and proceedings all lacked substance and were deliberate unmeritorious attempts by the applicant to prevent his dismissal. The steps taken to dismiss the applicant were not taken for any proscribed reason under the Fair Work Act 2009 (Cth).
6.Pursuant to that deed, the applicant was paid an amount of $28,546. It was after that payment was made that the applicant first suggested that the deed was not binding upon him. Prior to the execution of the deed, the applicant had, on two occasions, declined to execute the deed. At the time that the applicant came to execute the deed, he had a solicitor acting for him who conveyed to the Commonwealth the applicant’s desire to execute the deed if the termination of his employment could be withdrawn. It was in those circumstances, after the communication from the applicant’s solicitor, that the applicant came to sign the deed and send it back to the Commonwealth.
7.The version of the deed signed by the applicant was not properly witnessed. This was drawn to the applicant’s attention on the day, and the applicant then sent to the Commonwealth an executed deed with a witness described as Mr Bill Wong, and the signature of Mr Bill Wong, and the date. I find that the name, signature and date of the witness were in the applicant’s handwriting. The applicant placed that signature on the document to falsely represent to the Commonwealth that the Deed had been executed by Mr Nalbandian, and properly witnessed.
8.That use of a false witness was dishonest conduct by Mr Nalbandian. I find Mr Nalbandian knew he was being dishonest by falsely signing as a witness under a false name. I find that Mr Nalbandian was not a witness of truth. I find that Mr Nalbandian was willing to manufacture evidence in the witness box if he thought it would assist him. Mr Nalbandian gave evidence about having not read the deed, none of which was in his affidavit. Mr Nalbandian was a most unimpressive witness, and I do not accept him as credible. Much of Mr Nalbandian’s evidence was argumentative and he was determined to try and maintain his explanations regardless of whether they were responsive to the questions. I find that Mr Nalbandian grossly exaggerated his state of mind, the circumstances of his admission and discharge from hospital and the alleged impact of his medication.
9.Mr Nalbandian’s oral evidence in relation to the circumstances in which he came to place Mr Bill Wong’s signature on the document was materially inconsistent with a statutory declaration that he had signed. Mr Nalbandian is, I find, an untruthful and dishonest witness, and I do not accept his evidence. It was put on behalf of Mr Nalbandian that he was suffering from a special disability. I reject that submission. I find that Mr Nalbandian was well aware of the nature of the deed at the time he signed it, understood what he was doing, was exercising his own voluntary free will and was not the subject of any special disability. I find that Mr Nalbandian was not adversely affected by any medication at the time of signing the deed and fully understood the nature of the deed and his act of execution of the Deed.
10.I find that Mr Nalbandian knew that he would obtain an advantage and benefit from signing the deed, and did so having understood the benefit that he would get from that deed and was well aware of his choice not to settle the claims he had on foot. I reject Mr Nalbandian’s evidence that he did not read the deed. Mr Nalbandian’s conduct on the day is inconsistent with that oral evidence by Mr Nalbandian. Further, I find that the email communication sent to the Commonwealth on 27 March 2015 was not one which put the Commonwealth on notice of any special disability by the applicant. The email was sent to seek a further offer by the Commonwealth to settle with Mr Nalbandian and did not put the Commonwealth on notice of any incapacity by Mr Nalbandian.
11.The applicant was, in relation to the communications concerning the proposed deed, represented by a lawyer at the relevant time. There was nothing to give the Commonwealth notice of any alleged special disability by Mr Nalbandian in being unable to understand the nature of the document that he was executing, or its effect. I find that Mr Nalbandian fully understood the nature and effect of the document he executed. I find that the Commonwealth had no notice of any alleged special disability by Mr Nalbandian. I find that Mr Nalbandian in fact had no special disability at the time he signed the deed. I find that Mr Nalbandian was not the subject of any unconscionable conduct at the time of signing the deed. I find that Mr Nalbandian was not the subject of any illegitimate pressure or duress at the time of signing the deed.
12.I find the deed is binding on Mr Nalbandian. The question that is ordered to be separately determined should be answered in the affirmative that the deed is binding on Mr Nalbandian. It was common ground that if the question was answered in the affirmative that the deed is binding upon the applicant then the applicant’s proceedings should be dismissed. I dismiss the applicant’s proceedings. I will hear the parties on costs after I have heard the cross claim.
7. LEGAL PRINCIPLES
This appeal is instituted from the Federal Circuit Court pursuant to s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) and is an appeal by way of rehearing; Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 (Ward) at [70] – [71] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). As a result, this Court is bound on an appeal to “decide the rights of the parties upon the facts and in accordance with the law as it exists at the time of hearing the appeal”; Ward at 87 [70] (quoting CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172 at [111] with approval in this context).
In relation to cases where the court on appeal is called upon to consider the drawing of inferences from admitted facts or facts found by the trial judge, the established principle is that an appellate court is in as good a position to decide the question as was the trial judge. This view was expressed by Gibbs ACJ, Jacobs and Murphy JJ in Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 551, namely:
18.… the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it. …
The position in relation to credit findings is somewhat different. The context in which such findings are challenged on an appeal by way of rehearing is explained by Gleeson CJ, Gummow and Kirby JJ in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (Fox v Percy) at [28] – [29] as follows (citations omitted):
28.… In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge’s conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.
29.… In some, quite rare, cases, although the facts fall short of being ‘incontrovertible’, an appellate conclusion may be reached that the decision at trial is ‘glaringly improbable’ or ‘contrary to compelling inferences’ in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must ‘not shrink from giving effect to’ its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process.
As Gleeson CJ, Gummow and Kirby JJ held in Fox v Percy at [23], there are “natural limitations” in the appellate court proceeding wholly or substantially on the court record, even though it is obliged to give the judgment which it considers ought to have been given at first instance. As their Honours continued (citations omitted):
23.… These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the ‘feeling’ of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
In addition, a finding that oral testimony is disbelieved will almost invariably be express. However, it cannot be assumed that every consideration influencing the primary judge’s assessment of credibility, including her or his impressions of the witness, will find expression in the reasons. In discharging the appellate function, account should also be taken for unexpressed considerations and impressions: Fox v Percy at [41] (Gleeson CJ, Gummow and Kirby JJ). As Lord Hoffmann explained in Biogen Inc v Medeva PLC [1996] UKHL 18; [1997] RPC 1 at 45 [54] (Lord Goff of Chieveley, Lord Browne-Wilkinson, Lord Mustill and Lord Slynn of Hadley agreeing):
The need for appellate caution in reversing the judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance (as Renan said, la vérité est dans une nuance), of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation.
8. GROUNDS OF APPEAL IN RELATION TO THE FIRST DECISION
8.1 Grounds 1, 2 and 8
In ground 1, the applicant simply states that the primary judge erred in finding that the Deed was binding. In ground 2 he asserts that the primary judge erred in finding that the applicant was not under a special disability and “failed to take into account relevant considerations”. Those considerations were not identified in the grounds of appeal, but in his written submissions the applicant contended that:
The Appellant was not able to make a decision as his mental state was affected by a range of factors. It therefore fell within the principles of Blomley v Ryan (1956) 99 CLR 362.
Ground 8 is related to grounds 1 and 2. It contends that the primary judge erred in finding that the 27 March 2015 email did not put the respondent on notice of his special disability, and that he failed to take into account “other evidence” of the applicant’s dealings with the respondent. The applicant’s submissions concerning this ground did not advert to the so-called other evidence but focused on the content of the 27 March 2015 email which, he contended, put the respondent on notice of his special disability. The focus of the applicant’s criticism in this respect was upon [10] of the first decision.
The grounds of appeal do not identify the nature of the special disability that the applicant contends that he suffered from. It would appear to be that it is alleged that his mental state and general health was such that he was in no position to decide whether or not to enter the Deed. Economic duress is also referred to in the points of claim.
The respondents submitted that, to the extent the applicant now seeks to assert lack of capacity to make a decision to enter into the Deed, the point was not advanced below. It also contended that the findings of the primary judge as to absence of special disability were in accordance with authority and that, regardless of the applicant’s mental state, the primary judge was correct to find that the respondent was not on notice of any special disability such that it could or had taken advantage of it.
8.1.1Relevant legal principles
In Kakavas v Crown Melbourne Limited [2013] HCA 25; (2013) 250 CLR 392 the High Court unanimously stated, in relation to establishing unconscionable conduct in the sense articulated in Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447 (Amadio), as follows:
118.Essential to the principle stated by both Mason J and Deane J in Amadio is that there should be an unconscientious taking advantage by one party of some disabling condition or circumstance that seriously affects the ability of the other party to make a rational judgment as to his or her own best interests. … the abiding rationale of the principle is to ensure that it is fair, just and reasonable for the stronger party to retain the benefit of the impugned transaction.
…
161.Equitable intervention to deprive a party of the benefit of its bargain on the basis that it was procured by unfair exploitation of the weakness of the other party requires proof of a predatory state of mind. Heedlessness of, or indifference to, the best interests of the other party is not sufficient for this purpose. The principle is not engaged by mere inadvertence, or even indifference, to the circumstances of the other party to an arm’s length commercial transaction. …
In Amadio, Mason J at 461 – 462 quoted Fullagar J in Blomley v Ryan [1956] HCA 81; (1956) 99 CLR 362 as follows:
It goes almost without saying that it is impossible to describe definitively all the situations in which relief would be granted on the ground of unconscionable conduct. As Fullagar J said in Blomley v Ryan (34):
“The circumstances adversely affecting a party, which may induce a court of equity either to refuse its aid or to set a transaction aside, are of great variety and can hardly be satisfactorily classified. Among them are poverty or need of any kind, sickness, age, sex, infirmity of body or mind, drunkenness, illiteracy or lack of education, lack of assistance or explanation where assistance or explanation is necessary. The common characteristic seems to be that they have the effect of placing one party at a serious disadvantage visa-à-vis the other.”
In relation to economic duress, the following passages are informative. In Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40, McHugh JA held at 45 – 46 that:
A person who is the subject of duress usually knows only too well what he is doing. But he chooses to submit to the demand or pressure rather than take an alternative course of action. The proper approach in my opinion is to ask whether any applied pressure induced the victim to enter into the contract and then ask whether that pressure went beyond what the law is prepared to countenance as legitimate?
In Australia and New Zealand Banking Group Limited v Karam [2005] NSWCA 344; (2005) 64 NSWLR 149, the Court of Appeal of NSW (Beazley, Ipp and Basten JJA) held that:
66. The vagueness inherent in the terms “economic duress” and “illegitimate pressure” can be avoided by treating the concept of “duress” as limited to threatened or actual unlawful conduct. The threat or conduct in question need not be directed to the person or property of the victim, narrowly identified, but can be to the legitimate commercial and financial interests of the party. Secondly, if the conduct or threat is not unlawful, the resulting agreement may nevertheless be set aside where the weaker party establishes undue influence (actual or presumptive) or unconscionable conduct based on an unconscientious taking advantage of his or her special disability or special disadvantage, in the sense identified in Amadio. …
It is to be noted from the foregoing that in the case of unconscionable conduct it is necessary for the applicant to establish first, the existence of a disabling condition that seriously affects the ability of the applicant to make a rational judgment as to his or her own best interests. Secondly, it must be established that the respondent possess the relevant predatory state of mind such that the respondent obtained the benefit of the bargain on the basis of unfair exploitation of the weakness. In the case of economic duress, threatened or actual unlawful conduct on the part of the respondent must be demonstrated.
8.1.2Consideration
Whilst economic duress was raised in the points of claim in the proceedings below, no case was put on appeal regarding that ground. Instead, the applicant contended that the primary judge erred in failing to find that he suffered a special disability at the relevant time. That involves consideration of the extent to which the primary judge erred in concluding first, that the applicant was not suffering from a special disability and secondly, that the Commonwealth had no notice of such special disability.
The chronology of events leading to the applicant’s entry into the Deed is summarised above. The following points may be taken from it:
(a)In the days leading up to the signing of the Deed, the applicant was legally represented.
(b)Several days prior to the entry into the Deed, on 23 March 2015, a copy of it was supplied to the applicant’s legal adviser.
(c)On 27 March 2015, the applicant, by his solicitor, urged upon the respondent that he wished to enter into the Deed, notwithstanding that the time for executing it had expired. The respondent resisted reinstating the offer and only after the applicant had given the respondent assurances of his desire to sign had the Deed been reoffered.
(d)The respondent signed the Deed, and subsequently deliberately and falsely represented to the respondent that the Deed had been correctly witnessed by “Bill Wong”.
(e)Two other people, being Mr Cocks and Ms van Gent, referred in contemporaneous correspondence on 27 March that they had explained to the applicant the seriousness of the consequences of him entering into the Deed.
(f)Subsequently, after signing the Deed, the applicant voluntarily acted to give effect to its terms. That action persisted from 27 March 2015 until 7 April 2015 when the applicant continued to urge the respondent to make payment in accordance with its terms.
(g)On 8 April 2015, the applicant swore a statutory declaration which he then sent to the respondent on 9 April 2015. The declaration included the following:
3.… When I was given the opportunity for a short term relief by signing the redundancy deed urgently, I wasted no time signing it for the sake of survival of my family…
…
5. My primary concern was our immediate survival…
The language of the statutory declaration is wholly inconsistent with the proposition that the applicant was suffering from a condition that seriously affected his ability to make a rational judgment as to his or her own best interests within the authorities relevant to the setting aside of agreements entered under a special disability. Taken together with the other aspects of the chronology, summarised briefly above, the sequence of events suggests the actions of a rational mind in entering into the agreement.
The primary judge concluded at [9] and [10] of his reasons:
9.… It was put on behalf of Mr Nalbandian that he was suffering from a special disability. I reject that submission. I find that Mr Nalbandian was well aware of the nature of the deed at the time he signed it, understood what he was doing, was exercising his own voluntary free will and was not the subject of any special disability. I find that Mr Nalbandian was not adversely affected by any medication at the time of signing the deed and fully understood the nature of the deed and his act of execution of the Deed.
10.I find that Mr Nalbandian knew that he would obtain an advantage and benefit from signing the deed, and did so having understood the benefit that he would get from that deed and was well aware of his choice not to settle the claims he had on foot. I reject Mr Nalbandian’s evidence that he did not read the deed. Mr Nalbandian’s conduct on the day is inconsistent with that oral evidence by Mr Nalbandian. Further, I find that the email communication sent to the Commonwealth on 27 March 2015 was not one which put the Commonwealth on notice of any special disability by the applicant. The email was sent to seek a further offer by the Commonwealth to settle with Mr Nalbandian and did not put the Commonwealth on notice of any incapacity by Mr Nalbandian.
The objective material before the Court supports these conclusions. In my view, the applicant has not demonstrated appellable error in the primary judge’s finding that the applicant was not suffering a special disability, or that the respondent was not, in any event, aware of the existence of any special disadvantage on the part of the applicant.
In relation to ground 8, the applicant urges that the primary judge misconstrued the 27 March email. I have in [32] above summarised the effect of that email. Notably, its terms do not inform the objective reader that the applicant was suffering from a disability such that he could not bring a rational mind to the question of entering into the Deed. As noted, no medical certificates were attached to the email. A single page, being a hospital admission notification, was the sole attachment to the email, but that provided no information as to the applicant’s state of mind. The content of the email itself referred to the subjective circumstances of the applicant which undoubtedly indicate that he was enduring troubled times in his personal life. However, the content of that email was not such that, in itself, it demonstrated that he was suffering a special disability. Nor could it be regarded as providing notification to the respondent of such a thing.
In the applicant’s written submissions on ground 8, the applicant criticises the primary judge’s observation that “the email was sent to seek a further offer by the Commonwealth to settle with Mr Nalbandian and did not put the Commonwealth on notice of any incapacity by Mr Nalbandian”.
Insofar as the applicant criticises the primary judge’s observation that the email was sent to seek a further offer, I do not think that this point goes very far. It is an observation that is not directly relevant to the question of unconscionability, but provides context to the primary judge’s interpretation of the email as a whole. In any event, towards the end of the email the applicant said the following:
I appeal to you Mr Kalisch to intervene on compassionate and ethical grounds, to give me one opportunity to demonstrate that I can meet the required standard as I have proven this in the past.
An objective observer could quite rationally understand these words to be a request on the part of the applicant to be reinstated to his position as an employee.
Accordingly, the applicant has not established that grounds 1, 2 or 8 of the appeal are made out.
8.2 Grounds 3 and 4 – findings as to the applicant’s complaints
In ground 3 the applicant contends that the primary judge erred in finding that the applicant had instituted complaints and legal proceedings to try to postpone the prospect of his dismissal. In ground 4 he contends that his Honour erred in finding that all of his complaints and proceedings lacked substance and were deliberate unmeritorious attempts to prevent his dismissal. In his submissions the applicant contends that the primary judge had no evidentiary basis for making these findings, that he had every right to make complaints to the Fair Work Commission and other bodies, and that it was not open to the primary judge to draw inferences that these proceedings were instituted to try to delay or avoid the termination of the applicant’s employment.
Ultimately, the applicant submits that the primary judge’s findings were “glaringly improbable” or “contrary to compelling inferences” such that the findings would be overturned on appeal in accordance with the principles set out in Fox v Percy at [29].
The respondent disputes the applicant’s characterisation of the primary judge’s findings. It submits that the multiple proceedings brought by the applicant against the respondent were instigated only after his employment performance was brought under question by the respondent. It further submits that the cross-examination of the applicant, including challenges to the credit of the applicant, left it open to the primary judge to reject the evidence given by the applicant and form the views that he expressed in the first decision concerning the motivation of the applicant for bringing those proceedings.
8.2.1Legal principles
In Fox v Percy, the majority held that, while account must be taken of the advantages enjoyed by the primary judge in resolving conflicting oral evidence, the mere fact that she or he resolved the conflict by findings as to credit does not immunise the conclusion from challenge.
The approach to be applied where such findings are challenged on an appeal by way of rehearing is explained by Gleeson CJ, Gummow and Kirby JJ in Fox v Percy at [28] – [29] as set out in [46] above.
8.2.2Consideration
Grounds 3 and 4 are directed towards the second last sentence of [5] of the first decision. Paragraph 5 is as follows:
Over a substantial period, the applicant was the subject of a performance review for unsatisfactory work. The applicant embarked upon a course of complaints and proceedings to try and postpone the prospect of his dismissal. I find that the applicant's unsatisfactory work was the cause of the steps taken to dismiss the applicant. I find that the applicant's complaints and proceedings all lacked substance and were deliberate unmeritorious attempts by the applicant to prevent his dismissal. The steps taken to dismiss the applicant were not taken for any proscribed reason under the Fair Work Act 2009 (Cth).
Three matters are relevant to disposition of this ground of appeal.
First, it is apparent from the reasoning of the primary judge that the observation about the unmeritorious nature of the applicant’s complaints did not form the kernel of the primary judge’s reasoning, which is reflected in the later paragraphs, which concerned whether or not the Deed was binding upon the applicant. The material findings of the primary judge were in [6] to [12].
Secondly, as the chronology of events recited above indicates, the applicant instituted four separate forms of proceeding against the respondent arising directly from the respondent’s indication that it would institute a review of his performance. The first was an application in the Fair Work Commission which was rejected at first instance and on appeal to the Full Bench of the Fair Work Commission. The second was a complaint to Comcare which was rejected also. The third was the second FWC application which was discontinued immediately upon the applicant receiving legal assistance from the Marrickville Legal Centre. The fourth was an application lodged with the Australian Human Rights Commission which alleged breaches of the Disability Discrimination Act 1992 (Cth), the Age Discrimination Act 2004 (Cth) and the Australian Human Rights Commission Act 1986 (Cth). It was certainly established that the first and second applications were unmeritorious. The withdrawal of the third application supports the inference that it, too, was unmeritorious.
Taken as a whole, it was open to the primary judge to conclude that all four of the proceedings were instituted without regard for their substantive merits, but rather to achieve a delay or reversal of the process of the review of the applicant’s performance as an employee.
Thirdly, the subject of the purpose of the four proceedings was directly raised in the course of the cross-examination of the applicant. In it, he was confronted with the chronology of events and he accepted that it was his intention in commencing the second FWC proceedings and the ARHC proceedings to challenge the performance review process. Plainly, that was a collateral purpose unrelated to the merits of those claims. In cross-examination the applicant denied that he commenced the four proceedings with a view to prevent his dismissal from his employment, however, it was open to the primary judge to disbelieve that evidence, and form a contrary view.
In my view, these matters indicate that the conclusions reached by the primary judge in relation to the proceedings instigated by the applicant were not “glaringly improbable” or “contrary to compelling inferences”. To the contrary, those conclusions were open to the primary judge.
8.3 Ground 5 – error in finding that using a false witness was dishonest conduct
The applicant contends in ground 5 that the primary judge erred in finding that by using a false witness he had engaged in dishonest conduct, and failed to take into account relevant considerations that existed at the time of the signature. In oral argument the applicant developed this point, by advancing the submission that in rejecting the evidence of the applicant in the witness box, the primary judge incorrectly took into account the fact that he had falsely witnessed his own signature on the Deed. As I understand that submission, the point being made was that the Deed was signed sometime before, and accordingly could not be taken into account in assessing the credit of the applicant in the witness box.
This ground of appeal is directed to the general credit findings made by the primary judge and in particular [8] of the reasons.
In my view, it was entirely open to the primary judge to form a view as to the credit of the applicant based on his conduct not only in the witness box, but also more generally. In [8] the primary judge said:
That use of a false witness was dishonest conduct by Mr Nalbandian. I find Mr Nalbandian knew he was being dishonest by falsely signing as a witness under a false name. I find that Mr Nalbandian was not a witness of truth. I find that Mr Nalbandian was willing to manufacture evidence in the witness box if he thought it would assist him. Mr Nalbandian gave evidence about having not read the deed, none of which was in his affidavit. Mr Nalbandian was a most unimpressive witness, and I do not accept him as credible. Much of Mr Nalbandian’s evidence was argumentative and he was determined to try and maintain his explanations regardless of whether they were responsive to the questions. I find that Mr Nalbandian grossly exaggerated his state of mind, the circumstances of his admission and discharge from hospital and the alleged impact of his medication.
It was not in dispute in the present application, or below, that the use of “Mr Bill Wong” as a purported witness on 27 March 2015 was false. The applicant conceded as much in his statutory declaration. The finding in [7] that the applicant placed that signature on the document in order falsely to represent to the Commonwealth that the Deed had been executed by Mr Nalbandian and properly witnessed is not challenged. In considering whether the applicant could be believed, the admitted falsity of the witnessing was a relevant factor.
Further, the finding concerning the bearing of false witness was but one of several reasons advanced for disbelieving the evidence given by the applicant. This ground of appeal does not challenge those findings. Indeed, a central aspect of the separate question concerned whether or not the applicant had read the Deed before signing it. As I have noted in [59], [60] above, the evidence reveals at least 8 reasons why the court had a reasonable basis to infer, contrary to the applicant’s evidence in the witness box, that he had done so, and was aware of its contents before signing.
Accordingly, this ground of appeal should be dismissed.
8.4 Ground 6 – error in finding that the applicant was willing to manufacture evidence in the witness box
In this ground, the applicant contends that the primary judge fell into error in finding that he was not a witness of truth and that he was willing to manufacture evidence in the witness box if he thought it would assist him. The applicant’s written submission asserts that this conclusion was “not open on the evidence” because the primary judge did not identify where the evidence was manufactured or how the evidence before the court could lead to that conclusion.
I am unable to accept that submission. For the reasons advanced in relation to grounds 1, 2, 5 and 8 above in my view it was open to the primary judge to conclude that the applicant was not a witness of truth. This ground of appeal is dismissed.
8.5 Ground 7 – error in finding that the applicant grossly exaggerated his state of mind
In ground 7 the applicant contends that the primary judge erred in finding in [8] that he grossly exaggerated his state of mind, the circumstances of his admission and discharge from hospital, and the alleged impact of his medication and otherwise failed to take into account “relevant considerations”.
In submissions, the applicant asserted that the primary judge failed to take into account the fact that he had sought medical assistance from his doctor and obtained medical reports on 22 December 2014, 16 January 2015 and 27 February 2015, and again on 7 March 2015. In the last of these the doctor recorded that the applicant was in a heightened state of distress with most prominent symptoms of insomnia, hypertension and depression. It was, the applicant submitted, against that background that the applicant had participated in a telephone conference with the Australian Human Rights Commission on 25 March 2015. The proceedings had deeply distressed the applicant and on 26 March 2016, he had called Beyond Blue, the NSW Police had attended his house, and he was transported to the Royal North Shore Hospital and presented with “suicidal ideation”. The applicant submits that the primary judge made an error of fact and that it was glaringly improbable that the applicant was “grossly exaggerating” his medical condition.
A primary factual contest before the primary judge was the applicant’s state of mind at the time that he executed the Deed. The primary judge had before him the evidence which forms the basis for the chronology of events to which I have referred above and he also observed the cross-examination of the applicant. In light of those matters, it was open to the primary judge to make a finding as to the applicant’s state of mind at the time that he executed the Deed.
Having considered each of those matters, including the transcript of the cross-examination of Mr Nalbandian, I can see no basis upon which one might draw the conclusion that the findings of the primary judge were “glaringly improbable”. No matters that the applicant draws to the attention to the Court in this application suggest otherwise.
8.6 Conclusion in relation to the First Decision
I have concluded that none of the grounds of appeal in relation to the first decision has been successful. That has the consequence that the primary judge’s orders in relation to the separate question remain undisturbed; that the Deed is binding on the applicant and that the application brought by the applicant is dismissed.
9.THE SECOND DECISION
9.1 Grounds 9 and 10
These grounds concern the award of costs against the applicant pursuant to s 570 of the Fair Work Act 2009 (Cth) assessed in the amount of $35,000. The applicant contends that the primary judge erred in finding that it had been established that the institution and the conduct of the proceedings was vexatious and without reasonable cause.
As I have noted, in argument the applicant accepted that if he failed on the grounds of appeal that challenged the first decision, then necessarily he would fail on grounds 9 and 10.
For the reasons set out below, I am of the opinion that this concession was properly made.
9.2 The second decision
The relevant parts of the second decision are as follows:
5.In the present case, I am satisfied that the applicant instituted these proceedings vexatiously and without reasonable cause. The applicant was well aware that he had signed a deed that was binding upon him. The applicant manufactured circumstances and excuses to try and keep the benefit of the deed and the payment thereunder, and then to bring further unmeritorious complaints and proceedings to obtain further funds from the Commonwealth.
6.The applicant’s conduct in these proceedings was both vexatious and unreasonable. This is an appropriate case, notwithstanding the caution, to be exercised in relation to the making of any order under s.570 of the Fair Work Act 2009 to make an order against the applicant. The history of these proceedings is protracted and was one where the issue of the significance of the deed had been drawn to the applicant’s attention by an earlier judge of this Court, as well as having been drawn to the applicant’s attention by this Court. Indeed, this Court made an order requiring the respondent to identify for the applicant’s benefit the likely costs that would follow if an order under s.570 of the Fair Work Act 2009 was successful.
7.The amount of the costs order being sought by the Commonwealth is in fact less than the amount identified in the document sent by the Commonwealth to the applicant pursuant to the directions made by the court. I am satisfied that the Commonwealth has incurred costs well in excess of the amount being sought. I am satisfied that these recoverable legal costs are separate from and in addition to the administrative expenses that Mr Nalbandian has caused the Commonwealth by making further complaints after the signing of the deed and by bringing these proceedings.
The reference in [6] to the significance of the Deed being drawn to the applicant’s attention in an earlier decision of the FCCA was to a decision in which security for costs of the proceedings was ordered to be paid by the applicant; Nalbandian v Commonwealth of Australia (Australian Bureau of Statistics) [2015] FCCA 2094. In that decision another judge of that Court made the following cautionary observations:
26.In response, Mr Nalbandian argues that the Deed is in effective [sic, ineffective] because, to put it bluntly, he did not know what he was doing when he signed it. t may be that, on the evidence that might be eventually led at trial, Mr Nalbandian will establish that he was in no position to understand the Deed. That does not necessarily mean that the Deed had no effect or even that the parties would not be held to be bound by its terms. Indeed, it might be difficult for Mr Nalbandian to escape the fact that at least for a short period, both he and the ABS acted on the basis that the Deed was effective. For example, Mr Nalbandian withdrew his claims and he accepted the payment of money to him by the ABS under the terms of the Deed. When I asked him about this at the hearing of the application, Mr Nalbandian was very coy. While not expressly admitting to have received a sum in excess of $22,000 from the ABS, he never denied it and his argument that that sum was considerably less than the loss he suffered amounted, in my opinion, to an implicit admission.
27.Another difficulty for Mr Nalbandian is that, on his own version of events, he falsely indicated to the ABS that his signature to the Deed was witnessed. If that be the case, there would be a strong basis to refuse any relief that might otherwise be available.
…
41.The final relevant matter is whether there are any other relevant discretionary considerations to take into account. In my view there is one very important discretionary consideration, namely, that in spite of claiming that the Deed is ineffective, Mr Nalbandian has obtained and kept for himself the benefit of entry into that Deed. On one view, he obtained that benefit by deception, namely by falsely signing the name of a witness to his own signature. I view this as a strong factor in the exercise of the discretion as to whether or not to make an order for security for costs.
In Trustee for the MTGI Trust v Johnston (No 2) [2016] FCAFC 190 the Full Court of the Federal Court of Australia (Siopis, Collier, Katzmann JJ) considered the exercise of discretion to award costs pursuant to s 570 of the Fair Work Act 2009 (Cth). At [8] of that decision the Court made the following pertinent observations:
8Section 570 of the FW Act confers discretion on the Court to order costs in Fair Work matters where proceedings were instituted vexatiously or without reasonable cause. Not only must this discretion be exercised judicially according to the terms defining it, it must be exercised with caution because of the exceptional nature of the power in an otherwise no-costs jurisdiction. The case for its exercise should be clearly demonstrated: Saxena v PPF Asset Management Ltd [2011] FCA 395 at [6]. As Mortimer J observed (correctly, in our opinion) in Ryan v Primesafe [2015] FCA 8 at [64]:
The reason for caution is the potential for discouraging parties’ pursuit in a complete and robust way of the claims for contravention which they seek to make under the Fair Work Act, or the defence of such claims. The policy behind s 570 is to ensure that the spectre of costs being awarded if a claim is unsuccessful does not loom so large in the mind of potential applicants (in particular, in my opinion) that those with genuine grievances and an arguable evidentiary and legal basis for them are put off commencing or continuing proceedings. It is an access to justice provision. Insofar as it operates to the benefit of respondents, it is designed to ensure respondents feel free to pursue arguable legal and factual responses to the claims made against them.
(cf Barker J in Pettit v Evolution Mining Ltd [2016] FCA 1304 at [62].)
In the present case, it is apparent that the applicant commenced these proceedings in the knowledge that he had entered the Deed, which on its face foreclosed the bringing of proceedings against the respondent. In spite of this, he then continued to prosecute the proceedings, and in doing so he was advancing a case which, on the objective evidence, was not supported by the facts. In light of the findings made by the primary judge it was open for him to reach the conclusion that the conditions necessary to give rise to an award of costs pursuant to s 570 were made out.
10.DISPOSITION
In light of the above reasons the appeal should be dismissed with costs.
I certify that the preceding one hundred (100) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burley. Associate:
Dated: 3 February 2017
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