Pateras v State of Victoria

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2016 0078

MARY PATERAS	Applicant
v
STATE OF VICTORIA	Respondent

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JUDGES:	SANTAMARIA and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 February 2017
DATE OF JUDGMENT:	1 March 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 31
JUDGMENT APPEALED FROM:	[2015] VCC 1710 (Judge O’Neill)

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NEGLIGENCE – Applicant alleged discrimination, victimisation, bullying, humiliation and isolation by various employees of the respondent in the course of her employment as a teacher at a State Secondary College – Negligence and breach of statutory duty – Pain and suffering damages and economic loss flowing from breach of duty of care – Injuries include Adjustment Disorder with Anxiety and Depressed Mood and various physical sequelae – Foreseeability of psychiatric injury – Content of the duty of care – Nature and extent of duty of care owed by school authorities – Whether primary judge erred in finding that injury not foreseeable and no breach of duty – Crown Proceedings Act 1958 s 23 – Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44.

PROCEDURE – Procedural fairness – Applicant alleged that certain documents not discovered by respondent – Whether findings of trial judge would have differed if documents produced.

PROCEDURE – Self-represented litigants – Whether trial judge failed to provide adequate assistance to applicant – Whether applicant denied procedural fairness.

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APPEARANCES:	Counsel	Solicitors
For the applicant	Ms L J Keily with Ms R T Campbell	Baker & McKenzie
For the respondent	Mr S A O’Meara QC with Mr R Kumar	Minter Ellison Lawyers

SANTAMARIA JA

BEACH JA:

Introduction

The applicant, Ms Mary Pateras, was employed by the respondent, the State of Victoria, at Galvin Park Secondary College from 1988 (‘the College’). From about 2000, she was a careers teacher at the College.

In 2007, the applicant applied for a teaching position at the College known as ‘Leading Teacher 1 — Pathways and Transition’ (LT1). She attended two interviews with a selection panel, on 17 and 22 October 2007. The selection panel was constituted by three teachers at the College, including the school principal, Mr Peter Newland. Following the second interview, on 22 October 2007, the applicant had a discussion with Mr Newland. The applicant contended that, in that discussion, Mr Newland breached his duty not to cause her psychological harm. Later, the applicant complained about the way in which she had been treated. At first, her complaint was dismissed. Upon reconsideration, it was upheld. She alleged that the way in which her complaint was investigated also caused her psychological harm. Finally, the applicant contended that she suffered further harm in the way in which her return to work was handled. Her proceeding was dismissed in the County Court.[1] The Court held that, as at the date of the discussion, any duty not to cause the applicant psychological harm had not been engaged. Moreover, the Court found that there had been no breach of any such duty either in the discussion or in the management of the investigation or the return to work.
[1]Pateras v State of Victoria [2015] VCC 1710 (‘Reasons’) (Judge O’Neill).

The applicant has applied for leave to appeal on several grounds. In particular, she has contended that the trial judge misstated the test in Koehler v Cerebos (Australia) Ltd[2] for the determination when the duty of care not to cause psychiatric injury is engaged. Next, she said that the Court should have found that ample indications had been given by her to her relevant colleagues that she was experiencing anxiety and stress such that the duty (properly understood) was, in fact, engaged. She also contended that the trial judge erred in assessing the conduct of her colleagues to her on an individual basis and not in assessing their conduct towards her ‘as a whole’. It is uncontroversial that the case turned largely upon credit; the trial judge preferred the evidence of other witnesses to that of the applicant. The applicant has contended that she has fresh evidence that undermines the credibility of those witnesses, particularly that of Mr Newland. Finally, the applicant said that the trial judge denied her a fair trial insofar as he did not give her the assistance necessary to make up for the fact that she was not legally represented.
[2](2005) 222 CLR 44 (‘Koehler’).

In our opinion, the applicant has made out none of her proposed grounds of appeal and her application for leave to appeal should be dismissed.

The basic facts

The trial judge had before him a great deal of evidence about what had occurred at the school from 2006 until 2008. In part, that evidence related to the issue whether the duty not to cause psychological harm to the applicant had been engaged and, in part, to the issue whether, on the assumption that the duty had been engaged, it had been breached.[3]
[3]On the hearing of the appeal, the parties agreed that the question whether the duty had been engaged by the 22 October 2007 was in dispute between them. Assuming that the duty had been engaged, the parties were in dispute as to whether it had been breached on or soon after 22 October 2007 during the discussion between the applicant and the school principal. The respondent agreed that, after the 22 October 2007, the duty had been engaged. However, the parties were in dispute as to whether it had been breached in the way in which the complaints of the applicant had been investigated and her return to work handled.

The applicant had been a successful teacher at the school. The value of her teaching had been independently recognised. The trial judge referred to her as ‘an acclaimed and competent teacher’.[4]
[4]Reasons [283].

In 2006 and 2007, the applicant experienced various personal issues, including:

(a) separation from her husband and commencement of a relationship with Mr Peter Stone, an assistant principal at the College;

(b) gynaecological problems, requiring several weeks of sick leave; and

(c) her son having glandular fever, requiring her to take a period of carer’s leave.

In 2006, the applicant consulted a psychiatrist, Dr Muller-Robbie. The applicant gave evidence that she told Mr Newland of her difficulties. In 2007, she consulted a psychologist, Ms Garfi. Those consultations were associated with her marital separation and her new relationship with Mr Stone. In July 2007, she was given two weeks off work by her general practitioner, Dr Milone, for stress. However, she did not bring that medical certificate to the attention of the College or seek otherwise to utilise that certificate.

In October 2007, the applicant applied for the LT1 position. As indicated above, she attended two interviews with a selection panel, on 17 and 22 October 2007.

Following the second interview, on 22 October 2007, the applicant was approached by Mr Newland and offered the LT1 position. Mr Newland was aware that the applicant had been stressed and nervous during the selection and interview process; he also understood that she had been physically unwell. However, his evidence was that he did not have any concerns about her mental state, as distinct from normal nervousness and anxiety. Although the applicant had left the second interview upset, Mr Newland believed that he would be providing her with good news that she had been successful in her application.

What happened in the discussion between the applicant and Mr Newland was in dispute.

The applicant’s evidence of her conversation with Mr Newland following the second interview was that:

(d) she thanked Mr Newland and accepted the offer;

(e) Mr Newland told her three times that he would not accept her acceptance of the offer as it was not in the best interests of the College;

(f) the applicant maintained her acceptance of the offer; and

(g) Mr Newland suggested that she consider her acceptance over the next 24 hours and come back with a different answer.

Mr Newland gave evidence that:

(h) he told the applicant that she was the successful applicant;

(i) he wanted to speak to her about certain aspects of the position and its expectations;

(j) the applicant did not want to speak about this and became upset;

(k) he suggested that their discussion continue on another day;

(l) he denied that he had told the applicant that her acceptance of the offer was not in the best interests of the College, or that he pressured her to consider her acceptance; and

(m)he agreed, under cross-examination, that the applicant accepted the position on a number of occasions in the context of his wanting to speak to her about the position.

The applicant ceased work following her conversation with Mr Newland. On the following day, she attended Dr Milone. Early on 23 October 2007, she sent an email to Mr Newland and the other members of the selection panel, in which she said: ‘I feel forced into the position of being unable to accept the offer’. Mr Newland’s reply, sent the same day, stated (in part):

You have taken offence at my approach and for this I am sorry, in trying to work through the process I have caused you great hurt and upset. There will be no resolution to the appointment until we have had a discussion. I know that I have eroded any goodwill you had towards me but I hope you can see that this state of play is not good for you, me or the school. I know that your health is such that you will not be at school this week. Could you please consider sitting down with me at a time that is convenient to us both next week?

On 7 November 2007, the applicant made a complaint in writing to Mr Bretton New (Acting Regional Director, Western Metropolitan Region (WMR), Department of Education and Early Childhood Development (DEECD)) in respect of the second interview and her subsequent discussion with Mr Newland. (A separate grievance was submitted to the Merit Protection Board (MPB).) The complaint was referred to Ms Katherine Henderson (Regional Director of WMR) for investigation. Ms Henderson in turn requested that the complaint be investigated by Ms Sue Conquest (Senior Education Officer at WMR).

In December 2007, the applicant submitted a WorkCover claim and, apart from some attempts to return to work at the College in 2008, she has not worked since. She retired from employment with the respondent in December 2009 on the grounds of ill health.

On February 2008, Ms Henderson wrote to the applicant and advised her of her determination that ‘the complaints do not have substance’.

On 7 March 2008, the applicant applied to the MPB for a review of the decision made by Ms Henderson. Following a hearing on 16 May 2008, the MPB stated that it had ‘formed the view that the investigation was seriously flawed’, and ordered that a new investigation be carried out. The MPB identified the flaws as follows:

(n) the investigator failed to establish the precise nature of the complaint;

(o) the investigator determined not to interview the complainant (in the Board’s view, interviewing the complainant in this matter would have assisted in clarifying the precise nature of the complaint);

(p) the investigator commenced the investigation prior to advising the complainant that she had been appointed as investigator;

(q) the complainant was not kept informed of the progress of the investigation; and

(r) the investigation took in excess of 16 weeks to complete.

On 26 August 2008, Ms Henderson wrote to the applicant and advised that an external investigation had been carried out. Ms Henderson wrote:

In a meeting which followed the selection interview, Mr Newland discussed the position with you. The investigator found that this discussion was carried out in such a way as to dissuade you from accepting the position.
In the investigator’s view, Mr Newland attempted to dissuade you by prevaricating over your acceptance of the position and suggesting that you reconsider in the interests of the school.

Ms Henderson’s letter concluded that the applicant should be offered the LT1 position at the College.[5]
[5]The present significance of this letter is the ‘fresh evidence’ application now brought by the applicant. The applicant has applied to adduce in evidence, on the hearing of the appeal, a copy of a signed letter from Ms Henderson to Mr Newland dated 27 August 2008. As will be shown below, the contents of this letter were not in controversy at trial. Exhibit 47 is a copy of a letter from Ms Henderson to the applicant dated 26 August 2008 which is in substantially identical terms to the letter to Mr Newland. Exhibit ZZ is a draft of the letter to Mr Newland.

Following correspondence between Ms Henderson and Mr Newland on 27 August 2008, on 2 September 2008, Mr Newland wrote to the applicant and offered her the LT1 position. The applicant subsequently accepted the position.

On 8 October 2008, the applicant attempted to return to work. Her attempt to return to work was ultimately unsuccessful.

As a result of these, and related, matters, the applicant claimed to have suffered injuries, in particular a psychiatric injury with physical consequences (including bruxism, temporomandibular disorder, alopecia, and irritable bowel syndrome).

The duty not to cause psychological harm

In Koehler the High Court considered when the duty not to cause psychological harm is engaged. In that case, the appellant was diagnosed with complex fibromyalgia syndrome and a major depressive illness. She alleged that the failure of her employer to take the steps she identified constituted both a breach of its common law duty and a breach of an implied term to provide a safe system of work. She had been a full time employee. After the loss of a major client, the employer had reviewed its operations and retrenched her. She was offered part time employment for 24 hours over three days a week. The letter of engagement did not set out the duties that she was expected to perform. When she started work, she realised that she could not do all the work that was required of her. She agreed to give it a try for a month. Later, she complained orally and in writing that her duties were too onerous. Her complaints related to whether the work would be completed; she did not suggest that the problems that she had were affecting her health. She suggested that the work that she should do should be reduced or that she be allowed to work on a further day. Her employer took no action. Ultimately, she suffered psychiatric injury.

The High Court affirmed the decision of the Full Court of the Supreme Court of Western Australia that the absence of any material available to the employer which would have alerted it to a specific risk of psychiatric injury meant that such a risk was not foreseeable. In their joint judgment, McHugh, Gummow, Hayne and Heydon JJ said:[6]

It may be right to say that it is now a matter of general knowledge that some recognisable psychiatric illnesses may be triggered by stress. It is, however, a further and much larger step to take to say that all employers must now recognise that all employees are at risk of psychiatric injury from stress at work. Yet it is that proposition, or one very like it, which must lie behind the Commissioner’s conclusion that it required no particular expertise to foresee the risk of psychiatric injury to the appellant.
The duty which an employer owes is owed to each employee. The relevant duty of care is engaged if psychiatric injury to the particular employee is reasonably foreseeable. That is why, in Hatton, the relevant question was rightly found to be whether this kind of harm to this particular employee was reasonably foreseeable. And, as pointed out in that case, that invites attention
to the nature and extent of the work being done by the particular employee and signs given by the employee concerned.[7]

[6]Callinan J delivered a concurring judgment.

[7]Koehler (2002) 222 CLR 44, 57 [34]–[35] (citations omitted).

Accordingly, it was necessary to take into account the ‘fundamental aspects of the relationship between the parties’.[8] The Court said:
[8]Ibid 53 [19].

The content of the duty which an employer owes an employee to take reasonable care to avoid psychiatric injury cannot be considered without taking account of the obligations which the parties owe one another under the contract of employment, the obligations arising from the relationship which equity would enforce and, of course, any applicable statutory provisions. ... Consideration of those obligations will reveal a number of questions that bear upon whether ... an employer’s duty of care to take reasonable care to avoid psychiatric injury requires the employer to modify the work to be performed by an employee.
...
What is important is that questions of the content of the duty of care, and what satisfaction of that duty may require, are not to be examined without considering the other obligations which exist between the parties.[9]
[9]Ibid 53–4 [21]–[22].

The appellant had agreed to perform the duties assigned to her. In Larner v George Weston Foods Ltd[10] this Court discussed Koehler and said:

The employer thus had a right to assume that Ms Koehler could perform the tasks she had agreed to perform without injury to her psychological health and it had no reason to suspect that she was at risk of psychiatric injury. Her complaints about the lack of time to cover the relevant territory did not, at the time they were made, give rise to any suspicion that her duties were putting her health at risk or the possibility of psychiatric injury. Rather,
[H]er complaints may have been understood as suggesting an industrial relations problem. They did not suggest danger to her psychiatric health. When she did go off sick, she (and her doctor) thought that the illness was physical, not psychiatric.[11]

[10][2014] VSCA 62 (Redlich, Tate and Santamaria JJA).

[11]Ibid [208]. The quotation is from the joint judgment of McHugh, Gummow, Hayne and Heydon JJ in Koehler (2002) 222 CLR 44, 59 [41].

In Hegarty v Queensland Ambulance Service,[12] the Queensland Court of Appeal allowed an appeal by an employer against a judgment in favour of an ambulance officer who had been awarded damages for work-related psychiatric injuries. His case had been that he was required to attend many traumatic and distressing scenes during the course of his employment. He did not receive any (or any adequate) counselling or psychological support with respect to distress he suffered as a result of his work, and he eventually sustained a psychiatric injury.
[12][2007] QCA 366.

Referring to Koehler, Keane JA said:

In the joint judgment of McHugh, Gummow, Hayne and Heydon JJ in the recent decision of the High Court in Koehler v Cerebos (Australia) Ltd, it was said that a stable appreciation of the content of the employer’s duty to take reasonable care is essential; and that it is erroneous to proceed on the assumption that ‘the relevant duty of care [is] sufficiently stated as a duty to take all reasonable steps to provide a safe system of work without examining what limits there might be on the kind of steps required of an employer.’ Further, ‘litigious hindsight’ must not prevent or obscure recognition that there are good reasons, apart from expense to the employer, why the law’s insistence that an employer must take reasonable care for the safety of employees at work does not extend to absolute and unremitting solicitude for an employee’s mental health even in the most stressful of occupations. A statement of what reasonable care involves in a particular situation which does not recognise these considerations is a travesty of that standard.[13]

[13]Ibid [47] (citation omitted).

In Hegarty, the defendant acknowledged that ‘there was a foreseeable risk that regular exposure to the vivid human tragedy of scenes of accident and illness could cause psychological stress, and possibly psychiatric injury, to ambulance officers’. In the course of his reasons, Keane JA made the following observations:

(a)First, in a negligent infliction of psychiatric injury case, the risk of injury may be less apparent than in cases of physical injury.
(b)Secondly, whether a risk is perceptible at all may in the end depend upon the vagaries and ambiguities of human expression and comprehension.
(c)Thirdly, whether a response to a perceived risk is reasonably necessary to ameliorate that risk is also likely to be attended with a greater degree of uncertainty; the taking of steps likely to reduce the risk of injury to mental health may be more debatable in terms of their likely efficacy than the mechanical alteration of the physical environment in which an employee works.
(d)Fourthly, the private and personal nature of psychological illness, and the consequential difficulties which attend the discharge of an employer’s duty in this respect, must be acknowledged as important considerations.
(e)Fifthly, the dignity of employees, and their entitlement to be free of harassment and intimidation, are also relevant to the content of the duty that might be asserted by a plaintiff.
(f)Sixthly, issues of some complexity arise in relation to when and how intervention by an employer to prevent mental illness should occur, and the likelihood that such intervention would be successful in ameliorating an employee’s problems.[14]

[14]Ibid [41]–[43]. The enumeration of Keane JA’s observations is taken from Taylor v Haileybury [2013] VSC 58, [116] (Beach J).

Was the duty engaged as at 22 October 2007?

In so far as the applicant has contended that, during her discussion with Mr Newland, he breached its duty of care to her not to cause her psychological damage, it is necessary to examine whether he was under any such duty at that point.[15] As indicated in Koehler, the basic principle is that the relevant duty of care is engaged ‘if psychiatric injury to the particular employee is reasonably foreseeable’.[16]
[15]As indicated below, the respondent’s vicarious liability depends upon whether its servants or agents breached their duties.
[16]Koehler (2005) 222 CLR 44, 57 [35].

The applicant’s case was that the duty had been engaged as, on 22 October 2007, the school principal was well aware that she had had several absences from school in the months before October 2007.

During 2007, the applicant was absent from her employment on several occasions. She gave evidence that her absences were occasioned by her need to care for her son who had glandular fever and her own gynaecological problems. She said that she had told fellow staff members that these were the reasons for her absences. During July and August 2007, she had counselling sessions with a Ms Garfi, a psychologist.

The applicant said that, in August 2007, she returned from ‘a staggered period of certified leave’. She said that, on her return, she had had a discussion with Mr Mooney (the Senior Years Manager) in which he had accused her of taking too much time off and that this had imposed excessive workloads on the senior team. The discussion became an argument and the applicant said that it had had such an impact on her that she reported to her doctor that day. She said that she telephoned Mr Newland and told him that she was being cared for by her doctor because Mr Mooney’s ‘allegations were affecting [her] wellbeing and were discriminatory’. She said that she told Mr Newland that her doctor had issued her with a ‘medical certificate due to stress for two weeks’. She said that:

however I was mindful of the extremely busy period for the senior team and did not want to put added pressure on peoples [sic] workloads. Mr Newland gave me an undertaking that he would speak to Mr Mooney. With this knowledge I attended to my normal duties the following day.[17]

[17]The substance of this paragraph and each quotation is taken from the applicant’s amended witness statement dated 4 November 2015. See exhibit A.

On 28 August 2007, she consulted Dr Milone, who had been her GP for many years. Dr Milone’s notes recorded her as complaining of stress at work. He issued her with a certificate for two weeks’ stress leave. The applicant did not present that certificate to anyone at the school.

However, the applicant gave evidence that she had told Mr Newland of the stress she was under. She said that she had met him at ‘Jonathan’s Café’ and had said to him: ‘Peter, you know, it’s a little tough at the moment and that I have seen a number of counsellors about this and I am depressed and the fact that my work colleagues are blaming me for Peter Stone’s marriage break-up does not make life easy’.[18]
[18]The applicant’s own marriage had ended some time previously and she had commenced a relationship with Mr Peter Stone, one of the vice-principals at the school.

The applicant was cross-examined about the certificate she received from Dr Milone and her evidence that she spoke to Mr Newland after she had received it. The transcript of her cross-examination is as follows:

Counsel:There was no time when you presented a medical certificate that said anything about stress, or anxiety, or insomnia, or anything to suggest an emotional problem, was there?

Applicant: Only on 28 August where Dr Milone’s certificate - - -
Counsel: Says, ‘Stress at work’ - - -?
Applicant:Aware he indicated stress at work, and I believe that medical certificate had stress on it. But as I say, I rang Mr Newland that night and explained why I had been to Dr Milone, and that he issued a certificate for two weeks of stress, and Mr Newland gave me an undertaking that he would speak to Mr Mooney about those matters, and with that knowledge I presented to work.
Counsel:But the point is the medical certificate was never provided to the school, you didn't ever rely on it?
Applicant:No.

The applicant cross-examined Mr Newland on this subject. The transcript is as follows:

Applicant:If we go to - did you have any knowledge that I was undergoing depression at any point in time, Mr Newland.

Counsel:  Your Honour, that’s so wide as to be unhelpful.
His HonourYou need to be specific, Ms Pateras. When are you talking about?
Applicant:Did you have any indication that I was being treated for depression mid-2007?
Mr Newland:            Not that I can recall.
Applicant:Can you recall a meeting that you and I had at Jonathan’s Café?
Mr Newland:            No.
Applicant:No. My suggestion to you, this was a meeting in relation to my relationship with Peter Stone having become public knowledge and you invited me to Jonathan's Café and we had a talk about my personal circumstances and my unusual arrangement to live under the same roof with my ex-husband James?
Mr Newland:            I - that sounds extremely unlikely. I don’t believe that happened.
Applicant:I suggest to you that you asked me how I was coping and that I told you that I was undergoing some counselling in relation to my separation and that I was also depressed about people’s reactions about my relationship with Mr Stone?
Mr Newland:            I don’t believe that’s true.

Applicant:                You have absolutely no recollection of that?
Mr Newland:            No.
Applicant:Would I have discussed that matter with another member of staff who then relayed that information to you?
Counsel:Your Honour, again that’s just, in my submission a far too wide question and oppressive, it’s a suggestion ‑ ‑ ‑
His Honour:              Well, I think it can be answered. (To witness) Do you recall anyone saying, some other staff member saying something to that effect to you?
Mr Newland:            Not that I recall.

The applicant made reference to some further documents. The transcript continues:

His Honour:              Ms Pateras, I am loathed to interrupt you because you’ve got time constraints, but your evidence about this period in 2007 is pretty clear it seems to me, because I took particular note of it. That is that you were having no difficulties performing your work. That you had some absences, on the one hand to do with gynaecological problems and on the other hand to do with your son who had been unwell.
Applicant:Yes.
His Honour:              Seven or 30 days or how long it was. That you had had some counselling but that was to do with difficulties relating to your marriage split up and your relationship with your children. But otherwise your evidence was that you were able to perform your duties and more than capable of doing so. Are you now putting something different to Mr Newland?
Applicant:I am just saying, your Honour, that Mr Newland was aware that I was undergoing counselling and whilst we talked about that, the evidence was that part of that was in relation to my separation. There was also a psychologist report where I had reported, it was also about the backlash that I was receiving from some of my colleagues at work and Mr Newland was aware that those discussions were also taking place with psychologists concurrently with my marital issues.
His Honour:              Well, then you had better put that to him. Mr Newland, you’ve said you don’t recall a conversation at Jonathan’s Café nor that Ms Pateras was being treated for depression. You firstly recall that for whatever reason being told or by her or anyone, that she was undergoing counselling during 2007 from a psychologist or psychiatrist?
Mr Newland:            No, I do not, your Honour.
Applicant:Were you aware that there was some undercurrent of concern or ill feeling amongst other teachers of the school that her relationship with Mr Stone was disruptive or causing the break-up of his marriage or something to that effect?
Mr Newland:            I was not.
Applicant:Were you aware that she was in a relationship with Mr Stone in 2007?
Mr Newland:            I was.
Applicant:Was there any aspect of that that concerned you, that is that it could be having an effect on the school generally?
Mr Newland:            I wasn’t aware that it was having an effect on the school.
Applicant:Did you raise any concerns with her about that, do you recall?
Mr Newland:            No, I did not.

That evidence forms the background to the assessment of whether Mr Newland was, as at 22 October 2017, under a duty not to cause the applicant psychological harm when the applicant was interviewed for the LT1 position (was psychiatric injury to the applicant reasonably foreseeable?) and whether in the discussion that duty was breached.

Mr Newland was aware that the applicant had been stressed and nervous during the selection and interview process; he also understood that she had been physically unwell. However, his evidence was that he did not have any concerns about her mental state, as distinct from normal nervousness and anxiety. Although the applicant had left the second interview upset, Mr Newland believed that he would be providing her with good news that she had been successful in her application.

On 10 December 2007, the applicant submitted a WorkCover claim in which she said that her injury was in the form of ‘stress and anxiety’ which was ‘in response to a meeting with the Principal and the lack of action by DEECD in my crisis situation’.

The issues at trial

At the hearing of the appeal, the parties were agreed that the issues before the trial judge were:

(s) whether a relevant duty of care not to cause the applicant psychological injury existed as at 22 October 2007;

(t) whether the conduct of Mr Newland in the discussion that took place after the 22 October 2007 interview involved a breach of that duty;

(u) on the assumption that the duty not to cause the applicant psychological harm had been engaged so soon as the applicant was certified unfit to work by reason of stress, did the servants or agents of the respondent breach that duty in the manner in which:

(i) the investigation of her complaints; and

(ii) her return to work

was handled?

The reasons of the trial judge

In the relevant part of his reasons, the trial judge said:

From these authorities, in a case such as this where a claim is made by an employee claiming bullying, intimidation, isolation or failure to support, the following principles are of relevance:
•the nature and content of the duty of care owed by the employer is informed by the contract of employment, the nature of the work undertaken and the nature of the relationship between the employer and the employee.
•The question is then whether the kind of psychiatric harm subsequently suffered is reasonably foreseeable in the circumstances which existed at the time. Relevant to that is whether the employer had notice of unexplained absences from work, particular behaviour, medical evidence or other factors which would indicate an employee had a susceptibility or proclivity to psychological decompensation and injury.
•Part of the test is concerned with whether the employee believes he or she is capable of taking on the work.
•The test also requires consideration of whether it was reasonably foreseeable that the conduct complained of was likely to result in the type of mental anguish that could give rise to a recognised psychiatric injury.
•The duty by the employer, which is owed, does not require ‘absolute and unremitting solicitude’ for an employee’s mental well-being, and should not be viewed with the convenience of hindsight.
•The fact that a workplace issue is not handled as sensitively as it might otherwise have been does not necessarily give rise to a breach of the duty. Disappointed ambition in a workplace is common. Psychiatric decompensation as a result is not.

In determining whether the risk of psychological injury was foreseeable to the State, it is first necessary to understand the nature of the psychological injury suffered. According to the plaintiff’s treating psychiatrist, Dr Mohr, she has suffered a Chronic Adjustment Disorder with severe depressive symptoms. This condition has fluctuated somewhat over the years, and in the early years, particularly 2008 and 2009, her symptoms, which include sleep disturbance, high anxiety, palpitations, shortness of breath, depressive symptoms, including low mood, tearfulness, agitation, and affect upon concentration and memory, all were debilitating. Over the years, her condition has required treatment with antidepressant and psychotropic medication. Of more recent times, Ms Pateras’ psychological condition has improved, although she still remains fragile and subject to stressors.
As the authorities have prescribed, it is necessary to examine Ms Pateras’ psychological state, and the extent to which teachers at the College or others in the Department were aware of that state.
According to Ms Pateras’ statement, she had minimal absences from work prior to 2006. Between February 2006 and October 2007, she had a significant amount of sick leave or carer’s leave. These absences were explained by her as resulting, on the one hand, from the need to care for her son who had glandular fever, and on the other hand, were related to gynaecological problems.
Although from the notes of Dr Milone, Ms Pateras had several short episodes of depression in 2003, and then some period of two weeks or so away from work because of stress in October 2006, there is no evidence to suggest that those difficulties were relayed to the College authorities or teachers. While Ms Pateras was treated by Dr Muller-Robbie in 2006 and Ms Garfi, a psychologist, in 2007, again, there was no suggestion the episodes which took her to those practitioners were relayed to the College authorities or teachers. In fact, according to Ms Pateras’ statement:
‘I did not suffer any psychiatric illness at this time [2006 and 2007]. I was undergoing counselling in respect of my marriage separation. Mr Newland and Ms Gigatsis were informed of these matters.’

By ‘these matters’, I took Ms Pateras to mean the counselling in relation to her marriage separation.
Further in her statement, Ms Pateras referred to interpersonal conflict with Mr Newland and Mr Mooney. However, this related to time that she had spent away from work, and the consequent additional workload on other teachers. It was put to Ms Pateras that she had suffered depression and anxiety before October 2007. She said that she had some counselling with a counsellor, was not suffering anxiety and was depressed about certain matters. The matters about which she was depressed was the breakdown of her relationship with her former husband, and its effect upon her children.
Turning to the two interviews which Ms Pateras underwent, she said that while she was a little nervous at the first interview, she thought it went well.
At the second interview, she felt stressed and anxious when she was asked personal questions. She had rescheduled the second interview but that was to accommodate an ultrasound examination. She disagreed that she was ‘very unwell through the process’. Matters of her health and personal circumstances were raised by her, but that was largely related to the prospect that she might leave the Werribee area. She became upset towards the end of the second interview.
From this evidence, I conclude that while the College authorities, and possibly the teachers would have known Ms Pateras had significant time away from the College in 2007, this was in order to look after her son, and for physical gynaecological problems, nothing to do with stress or anxiety. Further, although she had some difficulties in the interview process, they were not such as to put Mr Newland or anyone else on alert that either continuing the interviews, or asking her to sit down with Mr Newland later in the day, on 22 October 2007, was likely to cause any stressful reaction. In fact Ms Pateras acknowledged at the second interview, she was offered to have it rescheduled, but refused on the basis that she felt quite capable of handling it.
Bearing in mind these matters and legal [principles], and even accepting those at the College and the DEECD failed to appropriately facilitate a return to work for the plaintiff, and that the conduct by Mr Newland in the interview on 22 October was aggressive or inappropriate, I am not satisfied that, given Ms Pateras’ past history and conduct, there was anything to indicate that she might suffer the significant psychiatric injury which subsequently transpired. At best, what could be said is that she might be disappointed, offended or upset. It should further be said that, to the extent that she was disappointed, offended or upset, all of that could be readily cured by her responding to Mr Newland’s emails to sit down and talk about the issues and attempt a sensible resolution. Sadly, that did not occur.[19]
[19]Reasons [270]–[280] (citations omitted).

The proposed grounds of appeal

The applicant has identified four proposed grounds of appeal.

In her first ground, the applicant said that

(v) the trial judge erred in finding that her psychiatric injury was not reasonably foreseeable applying the test in Koehler[20] and, in particular, he erred in considering that the question was whether ‘the kind of psychiatric harm suffered was reasonably foreseeable’.[21]
[20]The reference is to Reasons [280], [281].
[21]The reference is to Reasons [270].

(w) the Court should have found that, given numerous indications that she was experiencing anxiety and other physical stress to various actors of the State, it was reasonably foreseeable that she would suffer a psychiatric injury as subsequently transpired.

(x) the question of law is: whether the Court should have found, based on the evidence available to it, that the risk of psychiatric harm to the applicant was reasonably foreseeable.

In her second ground, the applicant said that:

(y) the trial judge erred in finding that that ‘none of the acts, failures or omissions alleged by Ms Pateras against the teachers of the College and others in the Department of DEECD, constituted a breach of that duty of care’,[22] when read together with other aspects of his reasons which make it clear that he considered the duty of care of each staff member individually.
[22]The reference is to Reasons [281].

(z) the Court should have found that, given the various conduct by different actors of the State, there was a breach of the duty of care when the conduct was taken as a whole even though each actor may not separately have breached a duty of care.

(aa) the question of law is: whether the Court should have considered, based on the evidence available to it, that there was a breach of the duty of care of by the State through all of its actors employed by the DEECD.

In her third proposed ground, the applicant said that there were errors of fact and breaches of procedural fairness arising from the failure by the respondent to produce documents relevant to issues in dispute. In particular, she said:

(bb) she was denied procedural fairness due to the respondent’s failure to produce documents relevant to issues in dispute during the proceedings that were in the respondent’s possession and have been provided to her pursuant to a Freedom of Information request and by a witness following the trial;

(cc)the failure to produce these documents at trial denied her a fair trial and was a breach of the Model Litigant Guidelines to which the respondent was subject both expressly and at common law; and

(dd) had these documents been produced and available to the trial judge, if given adequate weight they would have altered his findings as to credibility of the respondent’s key witness, Mr Newland, and changed findings of fact including in relation to Mr Newland’s account of his conduct towards the applicant during the two key contentious issues of fact.

In her fourth ground of appeal, the applicant said that the trial judge failed in his duty to assist her as a self-represented litigant. In particular, she says:

(ee) the duty to assist unrepresented litigants requires the provision of assistance to diminish, so far as this is possible, the disadvantage an unrepresented litigant will ordinarily suffer when faced with a lawyer and to prevent the litigant being destroyed by the traps which our adversary procedure offer to the unwary and untutored;

(ff) she was denied procedural fairness due to the trial judge’s failure to provide adequate assistance to her as a self-represented litigant. An example of this was she was cross-examined for 8 days. By contrast she was told she could not complete her cross-examination of the respondent’s key witness, Mr Newland, despite stating that she had ‘only five minutes to go’. A number of other examples are detailed in the Applicant’s written case; and

(gg) the breach of the duty to assist her as an unrepresented litigant constituted a denial of procedural fairness and warrants the setting aside of the decision below and remitting the matter for a fresh trial.

Contentions of the applicant

The applicant said that the trial judge had misapplied Koehler; it was not necessary for the particular kind of psychiatric harm to be foreseeable. Further, the trial judge had erred in assessing the conduct of each staff member towards the applicant individually and not their conduct towards her ‘as a whole’. She also contended that the trial judge had made erroneous findings of fact in deciding that there had been nothing observable about her conduct that gave any indication of the psychiatric injury that subsequently transpired. Those erroneous findings had arisen from the failure of the trial judge to give proper consideration to relevant evidence which showed the applicant to have been stressed and anxious and to have drawn the proper inferences from that evidence.

The applicant also pointed to the fact that, in deciding the case, the trial judge had made a decision as to the credibility of the applicant and Mr Newland as to the two keys issues: (a) the events of 22 October 2007; and (b) the circumstances surrounding her return to work. If the fresh evidence application was successful and the fresh evidence was admitted, it would show that the trial judge was in error in preferring to believe Mr Newland rather than the applicant on these key issues.

Finally, the applicant contended that she had been deprived of a fair trial by reason of the trial judge failing to give her the requisite assistance. After he had ruled some of her witness statement inadmissible, he failed to assist her to have the evidence in admissible form. He had also prematurely terminated her cross‑examination of Mr Newland, who was the key witness for the respondent.

Analysis

The applicant contends that, in purporting to apply Koehler, the trial judge misstated the test. In particular, she contended that the trial judge erred in holding that, to establish the duty of care, it was necessary for the particular kind of psychiatric harm to be foreseeable.

Read as a whole, it cannot be said that the trial judge held that, before any duty was engaged, the applicant had to show that the particular psychological damage from which she suffered was foreseeable. It is one thing to insist that psychological damage was reasonably foreseeable; it is another to insist that the particular form of psychological damage that a plaintiff complains about must have been reasonably foreseeable. It seems to us that, as much as the judge was doing was to require that there were facts and circumstances that made psychological damage reasonably foreseeable, not that the applicant had to show that the particular form of damage that she suffered was reasonably foreseeable.

It is true that, at times, the trial judge expressed himself in a way that might suggest that he had taken the relevant test to be that a plaintiff had to show that the particular form of psychiatric injury that the plaintiff suffered from was reasonably foreseeable.[23]
[23]The trial judge said at Reasons [270] that the following principles are of relevance in this case:
The question is then whether the kind of psychiatric harm subsequently suffered is reasonably foreseeable in the circumstances which existed at the time.
…
The test also requires consideration of whether it was reasonably foreseeable that the conduct complained of was likely to result in the type of mental anguish that could give rise to a recognised psychiatric injury.

Judgments are not to be read if they are statutes.[24] When one examines the manner in which the trial judge applied the relevant tests, it is plain that he did not misapply the test in Koehler. Having examined the evidence, he found that the College authorities would not have understood the applicant’s absences from the school as having anything to do ‘with stress or anxiety’; they would have understood that they were explained by her need to care for her son and her own gynaecological problems.[25] He also found that, while there had been difficulties in the interview process they were not such as to put Mr Newland or anyone else on alert that either continuing the interviews, or asking her to sit down with Mr Newland later in the day, on 22 October 2007 was likely to cause any stressful reaction. In fact, the applicant acknowledged that, at the second interview, Mr Newland offered to have it rescheduled, but that she had refused on the basis that she felt quite capable of handling it.[26] The trial judge said:

Bearing in mind these matters and legal principals, and even accepting those at the College and the DEECD failed to appropriately facilitate a return to work for the plaintiff, and that the conduct by Mr Newland in the interview on 22 October was aggressive or inappropriate, I am not satisfied that, given Ms Pateras’ past history and conduct, there was anything to indicate that she might suffer the significant psychiatric injury which subsequently transpired. At best, what could be said is that she might be disappointed, offended or upset. It should further be said that, to the extent that she was disappointed, offended or upset, all of that could be readily cured by her responding to Mr Newland’s emails to sit down and talk about the issues and attempt a sensible resolution. Sadly, that did not occur.[27]

It is plain from this how high the trial judge considered the evidence rose. All that was reasonable foreseeable was that the applicant ‘might be disappointed, offended or upset’. The onus was upon the applicant to show that much more was reasonably foreseeable.

[24]In Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 72 ALR 1, 6, Mason CJ, Wilson and Dawson JJ said: ‘Of course, reasons for judgment are not to be read as if they were a statute requiring to be construed. They must be read in context’. See also Veljanovska v Socobell OEM Pty Ltd [2005] VSCA 227, [15] (Ashley JA with whom Callaway and Buchanan JJA agreed).

[25]Reasons [279].

[26]Reasons [279].

[27]Reasons [280].

In so far as the duty had not been engaged, no question of breach arises. That said, we can see nothing in the trial judge’s conclusion that the conduct of Mr Newland might have involved any breach of any such duty or that it caused the applicant to suffer. As the trial judge put it, the applicant’s career as a teacher came to an end:

largely as a result of a misunderstanding with Mr Newland and others at the College, following the events of 22 October 2007. That result lies largely at the feet of Ms Pateras for failing to respond to Mr Newland’s request for a sensible discussion about what had occurred, her uncompromising attitude to the appointment to the LT1 position and her unassailable view that other teachers at the school and in the DEECD, rather than herself, were responsible for the sad state of affairs.[28]

[28]Reasons [283].

The failure to treat the employees of the State ‘as a whole’

In her second ground of appeal, the applicant complains that the trial judge assessed the conduct of the persons that the applicant considered responsible for her injuries on an individual basis and not ‘as a whole’. In her written submissions, the applicant said that the trial judge had concluded that (at [281]):

the State undoubtedly owed its employee, Ms Pateras, a duty to take reasonable care against the risk of foreseeable psychiatric injury, he is not satisfied that any of the acts, failures or omissions alleged ... against the teachers of the College and the others in the DEECD, constituted a breach of that duty of care.
However, at no stage did His Honour consider the collective actions of the various employees of the State as a whole. His methodology was to consider the actions of each of the various actors individually and to form a view on whether each of them had breached their duty. His Honour should have considered the actions of the employees of the State together as a whole rather than individually.

This ground was not developed in oral argument. It is difficult to understand what is meant by it. The footnote to the submission refers to the fact that the trial judge took each of the persons about whose conduct the applicant complained, and examined that complaint and reached conclusions about it.

Under the general law, the respondent has no duty to the applicant. However, s 23 of the Crown Proceedings Act 1958 provides:

(1) Subject to this Part —
(a)the Crown shall be liable in respect of any contract made on its behalf in the same manner as a subject is liable in respect of his contracts; and
(b)the Crown shall be liable for the torts of any servant or agent of the Crown or independent contractor employed by the Crown as nearly as possible in the same manner as a subject is liable for the torts of his servant or agent or of an independent contractor employed by him.

The present proceeding was in negligence. In order to make the respondent liable, it was necessary for the applicant to demonstrate ‘the torts of any servant or agent of the Crown’.[29] That is what she attempted to do. That is what the trial judge decided. It is not the case that s 23, by itself, requires the torts of various servants or agents to be aggregated. It is possible that a party may contend that, when the conduct of two or more servants or agents is aggregated, each has breached his or her duty to the plaintiff for which the respondent will be vicariously liable under s 23. But, that is not the way the applicant ran her case at trial. And, her written submissions do not take the matter any further.
[29]Hall v Whatmore [1961] VR 225, 226 (Herring CJ and Dean J), 229 (Hudson J).

At first instance, the applicant’s case at first instance was a claim for damages in respect of causes of action in negligence and breach of statutory duty. Neither at first instance nor in this Court did the applicant seek to pursue a claim for breach of contract.

In Stubbe v Jensen,[30] this Court held that it was an implied term of an employment contract between an employee of the State of Victoria and the State of Victoria that the State of Victoria owed its employee a duty to take reasonable care not to expose the employee to the unnecessary risk of injury.[31] No such claim, however, was pursued by the applicant in the present proceeding. Accordingly, it was not necessary for the trial judge to consider whether the respondent was liable to the applicant for a breach of any contractual duty owed by the respondent. The case in this Court (and, putting aside the claims for breach of statutory duty, the case at first instance) involved whether the applicant could establish that any employee or agent of the respondent, for whom the respondent was vicariously liable, breached a duty of care owed by such person to the applicant. This, the applicant has failed to do. Further, if the applicant had pursued a claim for breach of a contractual duty owed to her by the respondent, then the judge’s findings (which we have found to contain no error) would, if any contractual claim had been made by the applicant, have mandated the dismissal of her claim, in any event, for the reasons given by the judge.
[30][1997] 2 VR 439 (‘Stubbe’).
[31]See also, Commonwealth Bank of Australia v Barker (2014) 253 CLR 169, 190 [30] (French CJ, Bell and Keane JJ).

Application to adduce further evidence

On 5 December 2016, the applicant filed an application for leave to adduce fresh evidence on the hearing of the application for leave to appeal.

The fresh evidence application was supported by affidavits sworn by her on 5 December 2016 and 13 December 2016. In those affidavits, the applicant said that she wished to rely upon seven further documents. During the course of the hearing of the appeal, only two further documents were pressed:

(hh) a WorkCover return to work plan signed by Mr Newland on 20 December 2007 (the WorkCover return to work plan). The applicant said that this document affected the credibility of Mr Newland and undermined a finding by the trial judge that Mr Newland did not know that the applicant was to return to work on 29 January 2008; and

(ii) a signed letter from Katherine Henderson dated 27 August 2008 (the Henderson letter). The applicant said that this document affected the weight attributed to ‘Exhibit 22’ which the trial judge did not rely upon because it was in draft.[32]

[32]See n 5 and n 47.

The principles governing the exercise by this Court of its jurisdiction to admit fresh evidence were not in dispute. In Giles v Jeffrey,[33] the Court said:
[33][2016] VSCA 314 (Santamaria and Kyrou JJA and Elliott AJA).

In order to succeed in her application for leave to adducefresh evidence, the applicant had to establish the following:
(a)By the exercise of reasonable diligence the evidence could not have been discovered in time to be used in the hearing of the [earlier] proceeding.
(b)It is reasonably clear that if the evidence had been available at the hearing of the [earlier] proceeding, and had been adduced, an opposite result would have been produced.

(c) The evidence proposed to be adduced is reasonably credible.[34]

[34]Ibid [207]. The Court referred to Refaat v Barry [2015] VSCA 218, [76]–[77]; Clark v Stingel [2007] VSCA 292 [25], citing Orr v Holmes (1948) 76 CLR 632, 635–6; Commonwealth Bank of Australia v Quade (1991) 178 CLR 134, 141–2.

In Commonwealth Bank of Australia v Quade,[35] the Court said:

In cases where all that is involved is the discovery by the unsuccessful party of fresh evidence, Orr v Holmes and Greater Wollongong Corporation v Cowan establish that the reconciliation of ‘the demands of justice’ and the ‘policy’ that there be an end to litigation at least prima facie (or ‘generally’) dictate that the successful party should be deprived of the verdict in his favour only if the unsuccessful party persuades the appellate court that there was no lack of reasonable diligence on his part and that it is reasonably clear that the fresh evidence would have produced an opposite verdict. Such a stringent rule in that ordinary class of case is supported by considerations of both justice and public interest. Considerations of justice support it in that it would be unfair to the successful party if he were to be deprived of a verdict obtained after a trial on the merits and be subjected to the expense, inconvenience and uncertainty of a further trial merely because some relevant evidence had, without fault on his part, been unavailable to the unsuccessful party at the time of the trial. Considerations of public interest support it in that it is desirable in the public interest that there be finality in litigation in other than the truly exceptional case. If all that was necessary to procure the setting aside of a regularly obtained verdict was that the unsuccessful party show that fresh evidence which might have affected the outcome of the trial has become available after the trial, the verdicts of the courts would be of a provisional character only, being subject to the discovery of further relevant evidence.[36]

[35](1991) 178 CLR 134.

[36]Ibid 141-142.

In opposition to the application to adduce further evidence, the respondent filed an affidavit of Benjamin Harry House sworn 23 January 2017 (the House affidavit). In that affidavit, Mr House deposed that the respondent made discovery and filed three affidavits of documents as follows:

(jj) an affidavit of Ms Julie Myers dated 23 December 2014 which identified 237 documents together with two further documents over which privilege was claimed;

(kk) a further affidavit of Ms Myers dated 15 April 2015 which identified five documents together with five further documents which were no longer in the possession, custody or power of the respondent; and

(ll) a supplementary further affidavit of Ms Myers dated 26 August 2015 which identified 17 further documents.

Mr House says that, in total, the respondent made discovery of 259 documents which were still in its possession, custody or power, and over which no claim for privilege was made. In his affidavit, Mr House deposed that the WorkCover return to work was one of the respondent’s documents. He says that his firm had not previously been in possession of the document and that, so far as he was aware, there was no deliberate attempt to withhold the document from the applicant.

The applicant did not contend that the respondent or its solicitors had deliberately failed to discover the WorkCover return to work plan.

The WorkCover return to work plan does not satisfy the tests for fresh evidence.[37]
[37]An exhibit tendered in evidence showed that the creation of WorkCover return to work plan is a requirement of the Accident Compensation Act 1985.

In determining whether the document satisfies the ‘fresh evidence’ test, it is necessary to identify what part it could have played had it been tendered at trial. The applicant said that it was relevant to the credibility of Mr Newland. In making findings about two critical issues, the trial judge had to decide whether he believed the evidence of the applicant or Mr Newland. The first issue related to the existence of any duty of care before the meeting on 22 October 2007. In particular, had the applicant told Mr Newland that she was subject to stress at a meeting at Jonathan’s Café and in several telephone conversations? The second issue related to the conduct of Mr Newland in the discussion that took place between him and the applicant on 22 October 2007 after the second interview and whether his conduct involved a breach of that duty? In the case of both, the trial judge said that he preferred the evidence of Mr Newland to that of the applicant.

The applicant contended that the WorkCover return to work plan undermined the credibility of Mr Newland. She said that the document ‘refutes’ the factual finding of the trial judge that Mr Newland was surprised by her return to work in January 2008.[38]
[38]Reasons [152].

It should be said at the outset that the question whether Mr Newland was ‘surprised’ by the applicant’s return to work on 29 January 2008 was truly collateral to the main findings that the trial judge had to make.

In giving his reasons as to the applicant’s credibility, the trial judge said:

Of most significance were the events which surrounded her return to work on the first day of the 2008 school year, 29 January. It is clear from a number of emails passing between Ms Pateras and Ms Morrison, the personnel manager at the College that the motivation for her return to work was to ensure that she would obtain maximum benefit from her various leave entitlements. This is confirmed in the history given to Dr Milone in the entry in his clinical notes of 26 January 2008. Yet, in evidence, Ms Pateras insisted her return to work on 29 January 2008 was a genuine attempt to return. In my view, it was clear that Ms Pateras had no real intention of making an effective return to work but was rather concerned about her leave entitlements. In evidence, she said she was treated poorly on the day, her return was not recognised by Mr Newland, her name was not on the staff board despite notifying the College the Friday before, and her presence not acknowledged. Further, she said she was unable to continue after that day because of a panic attack. I do not accept any of this evidence given the circumstances surrounding this return to work.[39]

[39]Reasons [215]. At Reasons [233], the trial judge says:

Ms Pateras then returned to work on 29 January 2008 in circumstances which I have already described. I am satisfied the principal, if not the sole reason, was to preserve her leave entitlements. She attended a staff meeting, but complains of not being on the roster nor welcomed back by Mr Newland. I am satisfied Mr Newland and other teachers did not know she was about to arrive and I accept the roster was produced a week earlier. She left the school premises because she claims to have had a panic attack, although this is not referred to in Dr Milone’s notes.

See also Reasons [138].

That said, it is not at all clear that the existence of the WorkCover return to work plan would have affected either (a) this evidence; or (b) the trial judge’s finding.

First, while it is true that the WorkCover return to work plan was signed by Mr Newland, it is in qualified terms. It states: (a) against the entry ‘Return to Work details’ that the expected return date is ‘29.01.08 but not confirmed’; and (b) against the entry ‘Proposed return to work process an estimated return to work date’; ‘To be advised by attending doctor(s)’.

Second, at trial, a different return to work plan document was in evidence.[40] The different return to work plan was, in substance, identical to the WorkCover return to work plan. It contemplated a return to work ‘Term 1 — 2008’.
[40]The different return to work plan is found within exhibit BB dated 21 December 2007. See Reasons [167].

Third, the trial judge found that the applicant visited her general practitioner on 26 January 2008 and that the applicant wanted to return to work on 29 January 2008 (which was the next working day) ‘so as not to lose holiday pay’.[41]
[41]Reasons [138].

Fourth, in cross-examination, Mr Newland said that, in January 2008, it was his belief that the applicant was unfit for work and on sick leave. The applicant did not put to Mr Newland the WorkCover return to work plan that had been tendered in evidence and suggest to him that it contradicted his belief that she was on sick leave.[42]
[42]At trial, the applicant was aware of the significance that she now attaches to the WorkCover return to work plan. During her cross-examination, she referred to ‘a return to work plan that clearly indicates I was — my expected due date was Term 1 which was 29 January, there is a return to work plan to that effect’.

Fifth, other witnesses gave evidence that they had not expected the applicant to return to work on 29 January 2008.[43]
[43]See Reasons [194].

In the circumstances, it is clear that, had the WorkCover return to work plan been available at the hearing, and tendered in evidence, no opposite result would have been produced.

The Henderson letter is a letter signed by Ms Henderson to Mr Newland dated 27 August 2008. Again, it is not entirely clear what use the applicant says should be made of this document and how it would have changed the result below.

As the applicant submitted, Ms Henderson said that an external investigation had been carried out by Julie Baker-Smith & Associates (‘JBSA’) which had made certain findings in relation to the dispute between the applicant and Mr Newland. In particular, she says that the letter showed that JBSA had found that:

(mm) the selection panel had determined that the position LT1 should be offered to the applicant;

(nn) in a discussion after the meeting of the selection panel, Mr Newland sought to dissuade the applicant from taking the position;

(oo) Mr Newland sought to dissuade the applicant from accepting the position by prevaricating over her acceptance and asking her to reconsider her acceptance in the interests of the school;

(pp) Mr Newland had intended to act in the interests of the school; and

(qq) the applicant should be offered the position.

During evidence, it appears that the applicant attempted to tender a draft of the Henderson letter but that the trial judge had said that, as it was a draft, he proposed to give it little weight.

However, the evidence contained:

(rr) a companion letter from Ms Henderson to the applicant which made the same points as those contained in the Henderson letter;[44]
[44]Exhibit 47.

(ss)a relevantly identical draft letter;[45] and

(tt) a letter from Mr Newland to the applicant dated 2 September 2008 which he explained to her was ‘a consequence of’ his receiving the Henderson letter.[46]

[45]Exhibit ZZ. The trial judge permitted the applicant to file the draft letter in final addresses.

[46]Exhibit 23.

In our opinion, the substance of the Henderson letter was in evidence. Moreover, its contents — which describe the result of the applicant’s complaint — were not in dispute. Further, it was written some ten months after the incident that it investigated and, to the extent that it made findings on matters that were the subject of the proceedings, it was (as he pointed out to the applicant) for the trial judge to make his own findings on the issues that were before the Court and to do so on the evidence adduced before him.[47]
[47]When a draft of the Henderson letter was sought to be put into evidence, the trial judge made a comment that:
it is only a draft isn’t it? Is there any evidence that this was formalised and sent to Mr Newland? … The difficulty with it, Ms Pateras, is that I don’t know whether it was ever formalised. I mean … probably something along these lines must have been sent to Mr Newland at the outcome of the second investigation … But I don’t know whether this was the document that was sent.
However, there seems to be no evidence to suggest that, when he came to make his decision, he did not accept, as true, the contents of the draft letter.

The application to adduce the WorkCover return to work plan and the Henderson letter fails.

The duty to assist an unrepresented litigant

The applicant contended that she was denied procedural fairness due to the failure of the trial judge to comply with his duty to assist an unrepresented litigant. On the hearing of the appeal, counsel advanced two particulars of breach:

(uu) in ruling that part of her witness statement was inadmissible, the trial judge told the applicant that she could repair the resultant omission in her evidence by cross-examining a witness for the respondent when he gave his evidence. While the respondent had given notice to the applicant that it was to call that witness and she had not given notice that she required him to attend for cross-examination,[48] the trial judge should have advised her that she could none the less require his attendance for cross-examination;

(vv) the trial judge had prematurely ended the cross-examination by the applicant of Mr Newland and deprived her of the opportunity to complete it.

[48]At an interlocutory hearing held 12 June 2015, the parties were directed to exchange and file witness statements. Another direction required the parties to serve notices advising which parties they required to attend for cross-examination. That direction also provided that if no notice to attend had been given, the party could rely on the evidence in the witness statement without the need for the witness to attend. On 28 August 2015, the respondent served its witness statements on the applicant. That list included ‘Mr Mooney dated 26 August 2015’. On 24 September 2015, the applicant gave notice of the witnesses that she require attend for the purposes of cross-examination. Her list made no reference to Mr Mooney.

The transcript reveals that in her witness statement the applicant had included the following:

I believe that Mr Newland’s refusal to accept my acceptance was influenced in part by Mr Mooney.

And shortly after the statement said:

I believe Mr Mooney was alluding to my relationship with Mr Peter Stone.

Having explained to the applicant that she could not herself adduce evidence of her belief about what influenced someone else, a discussion ensued. During the discussion, the applicant said that Mr Mooney was to be a witness for the respondent. The trial judge said to her ‘you can cross-examine him’ on what he might have said.

At the hearing of the appeal, counsel contended that the trial judge had breached the rules of procedural fairness in not advising the applicant that, notwithstanding that she had not given notice requiring Mr Mooney to attend for cross-examination, she should now do so. Counsel also submitted that, later in the trial, when the respondent tendered a statement of Mr Mooney, the judge should have reminded the applicant that she should cross-examine Mr Mooney.

However, there is no evidence that the trial judge was aware that Mr Mooney was not required to attend for cross-examination.[49] The applicant did not tell the judge that he had been delivered from the obligation to attend.[50] Further, it is difficult to see what evidence could have been adduced from him on the subject. The issue was whether what Mr Newland had done in the discussion after the second interview on 22 October 2007 involved a breach of any duty of care to the applicant.[51] Moreover, evidence that he was influenced to do what he did by any other person could not have been relevant.[52] Finally, if it had been relevant, the inquiry would have had to have been directed at Mr Newland, not Mr Mooney.
[49]The applicant did not explain why she did not call Mr Mooney. He had been her referee for the position at the heart of the proceedings.
[50]The transcript of the hearing below shows that the applicant was fully aware of the effect of the programming directions made 12 June 2015. The applicant herself referred to it. It was discussed in her presence. During the respondent’s opening, reference was made to Mr Mooney’s evidence. When Mr Mooney’s statement was tendered, the applicant said that she had no objection to its being placed in evidence.
[51]The transcript shows that the applicant thoroughly cross-examined Mr Newland about what he did on 22 October 2007 and subsequently in January 2008. In that cross-examination she made several references to the conduct of Mr Mooney.
[52]The transcript reveals that the applicant was able to cross-examine Mr Newland on what he did in the discussion on 22 October 2007.

The applicant also complained that she had been unable to finish her cross‑examination of Mr Newland. She said that this was a matter of great significance given that so much of the judgment turned on matters of credibility in which the trial judge preferred the evidence of Mr Newland to hers.[53] In particular, she pointed to the fact that her cross-examination by the respondent had gone over six days whereas her cross-examination of Mr Newland had been restricted.[54]
[53]Counsel for the applicant referred to those parts of the judgment below where the trial judge preferred evidence given by persons other than the applicant: Reasons [225], [229], [233], [234], [235], [244], [246].
[54]The cross-examination of Mr Newland commenced at 11:23 am on 17 November 2015. One witness was interposed. It completed at 3:00 pm on 18 November 2015. Before lunch on 18 November 2015, the judge warned the applicant that her cross-examination would not be permitted to proceed beyond ‘1 o’clock’. Immediately before the luncheon adjournment on 18 November 2015, the trial judge asked the applicant how much longer her cross-examination of Mr Newland could be expected to go. Her answer was ‘possibly an hour’. At 12:40 pm, the trial judge adjourned the hearing until 2:00 pm. The applicant was not present at 2:00 pm. The cross-examination recommenced at 2:14 pm. At 3:00 pm, the applicant said that she had ‘five minutes to go’. The judge appears not to have permitted any further cross-examination. At the appeal, her counsel said that she only cross-examined Mr Newland for three and a half hours.

At the hearing of the appeal, this Court asked counsel to explain what matters the applicant had been prevented from putting in cross-examination. Counsel said: (a) all of the events after 22 October 2007; (b) whether Mr Newland had been influenced by Mr Mooney; and (c) whether Mr Newland had seen the signs of her mental distress.

However, it does not appear that the termination of her cross-examination of Mr Newland caused the applicant any injustice. Part of the applicant’s case was that, after she had gone on sick leave, Mr Newland breached his duty to the applicant by not getting her back to work. However, the transcript shows that she cross‑examined him on (a) her return to work; and (b) events after 22 October 2007.

Application for extension of time to apply for leave to appeal

The judgment below was pronounced on 1 December 2015. Pursuant to the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’), an application for leave to appeal shall be filed within 28 days. Pursuant to r 64.08(1), the Court has power to extend time for the filing of an application for leave to appeal.

On 15 June 2016, the applicant applied for an extension of time pursuant to r 64.08(1). Her application was supported by an affidavit sworn 8 June 2016.

In her application for an extension of time, the applicant advanced several grounds in support of her application. In summary, she contended that there was merit in her substantive application.[55]
[55]The applicant referred to the following:
(1)The merit of the application for other than leave to appeal is supported by compelling reasons that the leave to appeal has a real prospect of success and should be allowed.
(2)        The obligation of the respondent to act as a model litigant.
(3)        Breach of overarching obligations of the Civil Procedures Act 2010 by the respondent.
(4)        Breach of County Court Civil Procedures Rules 2008.
(5)Pre-Judicial [sic] orders that refused the applicant leave to subpoena documents from the following entities:
(a)        the Merit Protection Boards;
(b)        the Victorian Human rights and Equal Opportunities Commission;
(c)        Victoria Civil and Administrative Claims Tribunal;
(d)        Accident Compensation and Conciliation services.
(6)        Judgment for the defendant was a miscarriage of justice as was compounded by
(a)        breach of overarching obligations of the Civil Procedures Act 2010 by the respondent;
(b)breach of County Court Civil Procedures Rules 2008 and Pre-Judicial [sic] orders that refused the applicant leave to subpoena documents;
(7)        No prejudice will result to the respondent because of the inordinate delay.

The applicant swore an affidavit on 8 June 2016 in support of her application for an extension of time. During the trial, she appeared without legal representation. In that affidavit, she said that she was badly affected by the death of a close friend on 15 November 2015 and that she broke down at her funeral on 23 November 2015. She said that she suffered a ‘mental relapse’ after the trial and that she was not able to read the decision below until about 7 April 2016. She has exhibited a list of her appointments with medical practitioners and the medication that she has been taking.

The applicant deposed that, once she read the decision, she concluded that there were several errors in the reasoning and that the respondent had not fulfilled its discovery obligations. In her opinion, this was an example that the respondent had intentionally misled the Court and had acted dishonestly.

By mid-April 2016, she had informed the solicitors for the respondent that she was proposing to appeal and, thereafter, suffered from problems with her computer which slowed down the preparation of the necessary documents. The applicant foreshadowed an application to adduce further evidence.

The respondent opposed the application for an extension of time. It said that the application had not been addressed in the written case. It also said that it had a vested right to the judgment below[56] and that the substantive application was itself without merit.[57]
[56]The respondent referred to Vilenius v Heinegar (1962) 36 ALJR 200, 201.
[57]The respondent referred to Trkulja v Dobrijevic [2015] VSCA 281; Deak-Fabrikant v Grech [2016] VSCA 118; Giza v Waybecca Pty Ltd [2016] VSCA 78.

Pursuant to r 64.08 of the Rules, the Court has a discretion to extend the time for filing an application for leave to appeal. As Kyrou JA observed in Gippsreal Ltd v Kenny:[58]

As with the exercise of any other discretion by the Court, the Court must seek to give effect to the overarching purpose in s 7 of the [Civil Procedure Act 2010], namely to ‘facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute’. The factors that are relevant to the exercise of the discretion under r 64.08 include the length of the delay, the reasons for the delay, the prospects of the application for leave to appeal succeeding and the extent of any prejudice to a respondent.

[58][2016] VSCA 65, [21]; see also Deak-Fabrikant v Grech [2016] VSCA 118, [34] (Priest and Beach JJA).

Given our conclusion that there is no merit in the substantive application and that it should be dismissed, the question whether the applicant should be given an extension of time has become effectively moot. However, as a matter of formality, we will grant leave to the applicant to extend the time for her to bring her application for leave to appeal.

Conclusion

In the light of the foregoing, we will:

(ww) grant the application to extend the time in which the applicant may bring her application for leave to appeal from the order of the County Court dated 1 December 2015 (Judge O’Neill) until 15 June 2016;

(xx) refuse the application to adduce fresh evidence on the hearing of the present application; and

(yy) dismiss the application for leave to appeal.

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Mary Pateras v State of Victoria [2017] VSCA 31

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[2017] VSCA 31

1 March 2017