Rossi v Qantas Airways Limited (No 4) - [2023] FCA 1008

FEDERAL COURT OF AUSTRALIA
Rossi v Qantas Airways Limited (No 4) [2023] FCA 1008

File number: NSD 1549 of 2019

Judgment of: BANKS-SMITH J

Date of judgment: 28 August 2023

Catchwords: CAPACITY - compromise of litigation by deed - personal autonomy - where applicant asserts incapacity and seeks to have deed declared void - where applicant bears onus of establishing was handicapped person within prescribed definition - issue and context specific assessment of capacity - events occurred in 2008 - use of lay and expert evidence in retrospective assessment - whether onus satisfied

Legislation:
Evidence Act 1995 (Cth) ss 60, 136, 140

Federal Court Rules 2011 (Cth) r 23.13

Accident Compensation Act1985 (Vic) s 103

County Court Act 1958 (Vic) s 78

County Court Rules of Procedure in Civil Proceedings 1999 (Vic) O 15

Cases cited:
A v N [2012] NSWSC 354

Australian Securities and Investments Commission v Mitchell (No 2) [2020] FCA 1098

Banks v Goodfellow (1870) LR 5 QB 549

Briginshaw v Briginshaw (1938) 60 CLR 336

Bull v Fulton (1942) 66 CLR 295

Croft v Sanders [2019] NSWCA 303

Dalle-Molle v Manos [2004] SASC 102; (2004) 88 SASR 193

Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588

Drivas v Jakopovic [2019] NSWCA 218; (2019) 100 NSWLR 505

Flageul v WeDrive Pty Ltd [2020] FCA 1666

Gibbons v Wright (1954) 91 CLR 423

Goddard Elliott (A Firm) v Fritsch [2012] VSC 87

Guthrie v Spence [2009] NSWCA 369; (2009) 78 NSWLR 225

Hanna v Raoul [2018] NSWCA 201

Herron v HarperCollins Publishers Australia Pty Ltd [2022] FCAFC 68; (2022) 292 FCR 336

Hobhouse v Macarthur-Onslow [2016] NSWSC 1831

Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705

Masterman-Lister v Brutton & Co [2003] 1 WLR 1511

Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 5) [2015] FCA 571

Matthews v SPI Electrical (Ruling No 38) [2014] VSC 102

Murphy v Doman [2003] NSWCA 249; (2003) 58 NSWLR 51

Papakosmas v The Queen (1999) 196 CLR 297

R v Kucma [2005] VSCA 58; (2005) 11 VR 472

Re Erdogan's Application; Erdogan v Ekici [2012] VSC 256; (2012) 36 VR 579

Re Griffith (decd); Easter v Griffith(1995) 217 ALR 284

Rossi v Qantas Airways Limited (No 2) [2020] FCA 1080

Scott v Scott [2012] NSWSC 1541

Secretary, Department of Health v Southern Cross Directories Pty Ltd [2021] FCA 1592

Setka v Gregor (No 2) [2011] FCAFC 90; (2011) 195 FCR 203

Slaveski v State of Victoria [2009] VSC 596; (2009) 25 VR 160

Starr v Miller [2021] NSWSC 426

Starr v Miller [2022] NSWCA 46

TJ (on behalf of the Yindjibarndi People) v Western Australia (No 3) [2015] FCA 1359

Treasury Wine Estates Vinters Limited v Pearson [2019] FCAFC 21; (2019) 268 FCR 12

Vishniakov v Lay [2019] VSC 403; (2019) 58 VR 375

Zorbas v Sidiropoulous(No 2) [2009] NSWCA 197

Division: General Division

Registry: New South Wales

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 417

Date of hearing: 9-12 August 2021, 8 November 2021 and 16 February 2022

Counsel for the Applicant: Ms K Edwards with Ms A Costin

Solicitor for the Applicant: Harmers Workplace Lawyers

Counsel for the Respondent: Ms E Raper SC with Mr A Smorchevsky

Solicitor for the Respondent: Ashurst Australia

ORDERS

NSD 1549 of 2019

BETWEEN:
SARA ROSSI

Applicant

AND:
QANTAS AIRWAYS LIMITED

Respondent

ORDER MADE BY:

BANKS-SMITH J

DATE OF ORDER:

28 AUGUST 2023

THE COURT ORDERS THAT:
1.The applicant's application for an order declaring her to be a handicapped person within the meaning of O 15 of the County Court Rules of Procedure in Civil Proceedings 1999 (Vic) and for an order declaring void the deed of settlement made between the parties on 29 October 2008 is dismissed.
2.Failing agreement, the Court will hear submissions as to any other orders that should follow as a result of order 1 and as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Table of Contents

PART A - PRELIMINARY

[1]

Introduction

[1]

Amended originating application

[11]

Statutory framework

[12]

Brief chronology

[18]

PART B - PRINCIPLES

[38]

Preliminary - some examples

[38]

Principles - standard of mental capacity

[53]

Role of expert and lay evidence

[66]

PART C - INTRODUCTION TO ISSUES AND WITNESSES

[68]

Summary of respective cases

[68]

The approach to capacity

[70]

The witnesses

[75]

Conduct of trial

[84]

PART D - EVENTS

[85]

Formal claims against Qantas culminating in writ

[86]

MBC engaged to act

[94]

Psychiatric assessments

[103]

Change in the psychiatric assessments

[107]

Other events prior to the settlement conference

[126]

Letter informing Ms Rossi about the settlement conference

[126]

Ms Rossi's attempts to contact Mr McCristal

[128]

Appointment with Ms Allan 21 October 2008

[131]

Appointment with Dr Singleton 22 October 2008

[132]

27 October 2008 pre-conference meeting (Monday)

[133]

27 October 2008 settlement conference at Sparke Helmore

[146]

After the conference and leaving the building

[162]

28 October 2008 (Tuesday)

[167]

29 October 2008 settlement meeting continued (Wednesday)

[174]

After the conclusion of the settlement meeting

[198]

Ms Rossi's diary notes

[207]

The Deed

[209]

PART E - EVALUATING CERTAIN EVIDENCE

[216]

Ms Rossi

[216]

Mr McCristal

[223]

Mr Hutchinson

[231]

Ms Firth's affidavit

[232]

Limitation rulings

[233]

PART F - FINDINGS ABOUT EVENTS

[237]

Standard of proof

[237]

Certain findings

[239]

PART G - THE EXPERT EVIDENCE

[293]

Principles

[293]

Dr Singleton

[298]

Dr Singleton's lay and expert evidence

[302]

Evaluation of Dr Singleton's evidence

[312]

Ms Allan

[318]

Ms Allan's lay evidence

[323]

Ms Allan's expert evidence

[342]

Dr Parmegiani

[356]

Dr Lee

[377]

PART H - CONCLUSION

[394]

Orders

[416]

REASONS FOR JUDGMENT
BANKS-SMITH J:
PART A - PRELIMINARY
Introduction

On 29 October 2008 the applicant, Sara Rossi, signed a settlement deed (Deed), purportedly bringing to an end a workers' compensation claim that she made against the respondent, Qantas Airways Limited, in 2006. Ms Rossi now contends that she did not have the mental capacity to enter into the Deed. Accordingly, she seeks to have the Deed set aside, in the hope that she can pursue a claim for leave to bring an application under the Australian Human Rights Commission Act 1986 (Cth) against Qantas alleging unlawful discrimination.
The claims Ms Rossi seeks to pursue against Qantas are based on events which allegedly occurred between 2001 and 2003. Ms Rossi alleges that Qantas discriminated against her on the ground of sex and engaged in sexually harassing conduct, and discriminated against her on the ground of disability. She claims that such conduct caused her psychological injuries and led her to accept a voluntary redundancy in 2003. As a result of the injuries allegedly suffered at Qantas, Ms Rossi claims that she has been unable to work since 2003, save for a brief period.
Under the Deed, Ms Rossi agreed to accept $75,000 in full and final settlement of any claims relating to her employment with Qantas. After signing the Deed, Ms Rossi refused the settlement monies. Ms Rossi accepts that her proposed claim against Qantas can only proceed if the Court finds that the Deed is a nullity.
The proceeding in this Court began in 2019 when Ms Rossi made a claim for leave to bring the proposed application against Qantas under the Australian Human Rights Commission Act. The application to set aside the Deed forms part of the same proceeding.
On 31 July 2020 Gleeson J ordered that the issue of whether the Deed should be set aside should be determined before any question of leave to proceed against Qantas under the Australian Human Rights Commission Act: Rossi v Qantas Airways Limited (No 2) [2020] FCA 1080. More particularly, Gleeson J ordered that a separate determination was to address the orders sought in 1(a), (b) and (c) of the originating application. The relief by way of proposed order 1(a) relied on duress. That ground was subsequently abandoned by Ms Rossi by amendment to the pleading. The trial of the separate determination was allocated to me, and proceeded with respect to the relief sought in orders 1(b) and (c) only. The remaining proposed orders are reproduced below.
It is important to bear in mind what was not the subject of this trial. Ms Rossi does not allege duress, undue influence, or unconscionable conduct with respect to entry into the Deed. She no longer pursues claims against her legal representatives at the time. Rather, in issue is a relatively narrow question as to whether Ms Rossi was a 'handicapped person' under the relevant Victorian County Court rules when she signed the Deed. It was accepted that this Court has accrued jurisdiction to deal with this issue, having regard to the broader subject matter of the underlying proceeding: Treasury Wine Estates Vinters Limited v Pearson [2019] FCAFC 21; (2019) 268 FCR 12.
The significance of a decision of this nature must be recognised, even in circumstances where Ms Rossi herself seeks the relevant declaration. As Ms Rossi submitted, capacity to settle is crucial to the integrity of the legal system. As was observed by Bell J in Goddard Elliott (A Firm) v Fritsch [2012] VSC 87:
[560]… Depriving a person of the right to settle proceedings represents an interference with their civil rights and their personal autonomy in the conduct of litigation. It is likewise an invasion of that right and that autonomy to fail to recognise when a party is mentally ill and therefore lacks the capacity to make proper litigious decisions on their own behalf.
Having regard to the principles, and acknowledging the significance of the decision, the issue for determination in this case distils to whether on 29 October 2008 Ms Rossi lacked the capacity to understand the general nature and effect of the Deed, if it had been explained to her. It is not in issue that Ms Rossi bears the burden of proof in this regard.
For the reasons set out below, I am not satisfied that Ms Rossi has discharged this onus, and accordingly her application for relief is refused.
I acknowledge that for many years Ms Rossi has sought to pursue what she considers to be a great injustice she has suffered at the hands of Qantas. I acknowledge the significance of the proceeding as a whole to Ms Rossi personally, and that as a consequence of this decision her complaints may not be further investigated. The question of capacity in this case has not been an easy one, particularly as the events happened many years ago. But in the end it has been reached after the application of long-standing principles as to assessing the capacity of a person with mental health issues.
Amended originating application
In her amended originating application, Ms Rossi relevantly seeks:
(a)orders declaring her to be a handicapped person within the meaning of O 15 of the then County Court Rules of Procedure in Civil Proceedings 1999 (Vic); and
(b)orders declaring the Deed void by operation of s 78 of the County Court Act 1958 (Vic) and O 15 of the County Court Rules.
Statutory framework
The County Court Rules were made under the County Court's power in s 78(1) of the County Court Act. Although s 78 is referred to in the relief sought, it is only relevant as the source of the power vested in a majority of judges to make the County Court Rules.
When Ms Rossi signed the Deed on 29 October 2008, the relevant provision of the County Court Rules was O 15. It was not suggested that other provisions or rules were relevant to the dispute. Order 15 relevantly provided:
PERSON UNDER DISABILITY
15.01   Definitions
In this Order -
handicapped person means a person who is incapable by reason of injury, disease, senility, illness or physical or mental infirmity of managing his affairs in relation to the proceeding;
person under disability means minor or handicapped person.
15.02   Litigation guardian of person under disability
(1)Except where otherwise provided by or under any Act, a person under disability shall commence or defend a proceeding by his litigation guardian.
(2)Except where otherwise provided by these Rules, anything in a proceeding that is required or permitted by the Rules to be done by a party shall or may, if the party is a person under disability, be done by his litigation guardian.
(3)A litigation guardian of a person under disability shall act by a solicitor.
15.03   Appointment of litigation guardian
…
(3)Where after a proceeding is commenced a party to the proceeding becomes a handicapped person, the Court shall appoint a litigation guardian of that party.
…
15.08   Compromise of claim by a person under disability
(1)Where in a proceeding a claim is made by or on behalf of or against a person under disability, no compromise, payment of money or acceptance of an offer of compromise under Order 26, whenever entered into or made, shall so far as it relates to that claim be valid without the approval of the Court.
…
(4)On the application, evidence shall be given of the date of the compromise, payment or acceptance and the date of birth of the person under disability, and the dates shall be stated in any order approving the compromise, payment or acceptance.
(5)Where the acceptance of an offer of compromise is approved, the person under disability shall be taken to have made or accepted the offer at the time of approval.
The County Court Rules were revoked on 22 February 2009 by r 1.03(2) of the County Court Civil Procedure Rules 2008 (Vic), which were themselves revoked on 19 November 2018 by r 1.03(2) of the County Court Civil Procedural Rules 2018 (Vic). However, the rules relevant to this matter are those in force at the time Ms Rossi signed the Deed, that is, the County Court Rules.
The proper reading of the text from these provisions is relevantly to the effect that if a person is handicapped, then no claim brought by them can validly be compromised without the approval of the court.
As is apparent, Ms Rossi alleges that she was a handicapped person at the relevant time. There was no court approval for entry into the Deed. It follows, on Ms Rossi's case, that the Deed was ineffective in compromising her underlying claim against Qantas and (subject to any other limitations) the claim therefore persists.
Qantas, on the other hand, asserts that the claims against it by Ms Rossi were resolved and brought to an end by the Deed, and that Ms Rossi has not met the onus of establishing that the Deed should be set aside on the basis of her alleged incapacity.
Brief chronology
This section contains a brief chronology of relevant events, expressed in a relatively uncontentious manner so that the principles may be read in context. Particular events are addressed in more detail in later sections.
Ms Rossi commenced employment with Qantas as a flight attendant in 1988, becoming a customer service manager in 2000. She alleges that she sustained a workplace injury between 2001 and 2003.
Towards the end of 2002, Ms Rossi commenced receiving treatment from a psychologist, Amanda Allan. Ms Allan gave evidence in this proceeding.
It was not until around mid-2006 that Ms Rossi commenced her workers' compensation claim against Qantas. She attended a conciliation session but the claim was not resolved.
In around February 2007 Ms Rossi started seeing a new general practitioner, Dr Gillian Singleton. Dr Singleton also gave evidence in this proceeding.
In around April 2007 or May 2007 Ms Rossi was referred to Maurice Blackburn Cashburn (MBC) with respect to her workers' compensation claim. She signed a 'no win, no charge' retainer. From September 2007 John McCristal of MBC acted for Ms Rossi.
In preparation for trial, Mr McCristal arranged for Ms Rossi to be assessed by a psychiatrist, Dr John Gill. Ms Rossi attended an appointment with Dr Gill and he produced a report dated 27 November 2007. He diagnosed chronic adjustment disorder with mixed anxiety and depressed mood, and accepted that such psychiatric injury had been caused by her employment.
On 24 April 2008 Mr McCristal telephoned Ms Rossi about historical medical records he had received, and expressed concern that she had not previously provided him or Dr Gill with her full medical history, which included treatment for depression before the time of the impugned conduct of Qantas.
During 2008 Ms Rossi was also assessed by psychiatrists retained by Qantas, Dr Ian Jackson and Dr Paul Kornan.
In around September 2008 Mr Rossi attended a second appointment with Dr Gill. He produced supplementary reports. By this time Dr Gill had received additional information about Ms Rossi's earlier medical history and it caused him to change his earlier assessment of her condition and reduce the extent to which he considered it may have been caused by her employment with Qantas.
On 9 October 2008 Mr McCristal sent a letter to Ms Rossi notifying her that a settlement conference with Qantas' lawyers, Sparke Helmore, was scheduled for 27 October 2008.
The three days of 27 to 29 October 2008 are key in this matter.
On 27 October 2008 Ms Rossi met with Mr McCristal and a barrister retained on her behalf, Mr Brent Hutchinson, for a pre-conference discussion.
Together they then attended the scheduled settlement conference, which after some discussion was adjourned to 29 October 2008. Ms Rossi spoke to Ms Allan that evening.
On 28 October 2008 Ms Rossi went to see Dr Singleton and had phone calls with both Mr McCristal and Mr Hutchinson.
On 29 October 2008 the settlement conference resumed at Sparke Helmore's office, and an agreement was purportedly reached. Three documents were produced at this time: a letter from Mr McCristal to Ms Rossi headed 'Your Claim'; a document headed 'Terms of Settlement'; and the Deed. Ms Rossi apparently signed the letter and the Deed. The Terms of Settlement were signed by counsel.
After the conference Ms Rossi called Dr Singleton who considered that Ms Rossi was highly distressed. In the ensuing days Ms Rossi apparently remained distressed, and during November 2008 and December 2008 sought to discuss the settlement with Mr McCristal.
Ms Rossi alleges from around that time until late 2018 (that is, for some 10 years), she tried to find lawyers to assist her. She says it was not until November 2018 that she found Harmer Workplace Lawyers who agreed to act.
On 21 December 2018 a complaint was lodged with the Australian Human Rights Commission, but was terminated because it was lodged more than 12 months after the alleged acts.
On 20 September 2019 this action was commenced.
PART B - PRINCIPLES
Preliminary - some examples
The issue of capacity may arise in a number of contexts that inform the test that might be applied.
In a transactional environment, the issue may arise after documentation has been completed, and a person alleges a signatory did not have capacity to sign. Examples include Gibbons v Wright (1954) CLR 423; and Hanna v Raoul [2018] NSWCA 201.
In Gibbons v Wright, the appellant and her two sisters-in-law became owners of land as joint tenants. Subsequently the sisters executed documents converting the joint tenancy into a tenancy in common. After the sisters died, the appellant claimed that these documents were ineffective because the sisters lacked mental capacity. If this were the case the appellant would become sole owner. The court said that the mental capacity required may be described as the capacity to understand the nature of the transaction, when it is explained. It was necessary to show that the sisters were capable of understanding, if the matter had been explained to them, that by executing the mortgages they would be altering the character of their interest in the properties, so that instead of the last survivor becoming entitled to the whole, each of them would be entitled to a one-third share: at 438-439.

In Hanna v Raoul, the respondent signed a deed and transfer that had the effect that the appellant would discharge the respondent's mortgage and the respondent would transfer the property to the appellant, subject to a life estate in favour of the respondent. A problem arose after the transfer was completed when the house in which the respondent had continued to live burned down. The Court of Appeal found that it was probable that the respondent, who was elderly and frail, understood the broad operation of the general purport of the transaction encompassed in the deed and the transfer, albeit that he did not understand the legal implications of the creation of a life estate or the conferral of a remained interest. The evidence supported a conclusion that the respondent understood what he wanted to achieve by having someone else pay off his mortgage, and that it included the transfer of title.
The question of capacity frequently arises in the context of testamentary capacity, and there is an established body of law in that regard: Banks v Goodfellow (1870) LR 5 QB 549 at 565; Bull v Fulton (1942) 66 CLR 295 at 341‑343; and Re Griffith (decd); Easter v Griffith(1995) 217 ALR 284 at 295. The test for testamentary capacity is not necessarily useful by way of analogy in this case.
In a litigation context, the question of capacity may arise during proceedings where a person seeks to have a litigation representative appointed, and asserts that they do not have capacity to otherwise proceed. Examples include Vishniakov v Lay [2019] VSC 403; (2019) 58 VR 375; Slaveski v State of Victoria [2009] VSC 596; (2009) 25 VR 160; and Secretary, Department of Health v Southern Cross Directories Pty Ltd [2021] FCA 1592.
In Vishniakov the court allowed a plaintiff's application for the appointment of a litigation guardian. The case is cited frequently for Derham AsJ's useful collection of the relevant principles (at [30]). Slaveski similarly concerned the appointment of a litigation guardian, but in the context of a plaintiff who was self-represented. These are the only decisions that the parties were able to uncover that concerned the same provision of the County Court Rules that is applicable in this case, and the assistance offered by these authorities in this case is limited (because both involved a current consideration by the court of the appointment of a litigation guardian; they were not concerned with a particular transaction or a retrospective assessment).
In Secretary, Department of Health, the respondent failed to meet the onus of establishing that his capacity was impaired. The Court found that the medical evidence did not rise to a level that supported a finding of an absence of legal capacity, and took into account that communications with the Court evinced an understanding of the nature of the proceedings.
Re Erdogan's Application; Erdogan v Ekici [2012] VSC 256; (2012) 36 VR 579 provides an example where a plaintiff satisfied the court that, although in the exercise of its parens patriae jurisdiction the court had ordered that the plaintiff's settlement proceeds be paid into court, the court should in the exercise of that same jurisdiction determine that the plaintiff was no longer a person under disability and was entitled to the return of his property.
The question of capacity may also arise in the context of limitation periods and whether a disability might suspend the operation of the relevant limitation period. This was explored by the Court of Appeal in Guthrie v Spence [2009] NSWCA 369; (2009) 78 NSWLR 225. The plaintiff sought to pursue proceedings for assault and negligence alleged to have occurred at the hands of a school teacher when he was a child. The primary judge found that the plaintiff established that he was under a disability that impeded his affairs, being in context those affairs relevant to starting litigation to enforce his causes of action, such that the limitation period was suspended until a certain date, despite exhibiting capacity in other senses. The decision was upheld on appeal.
As in the present case, capacity may arise in the context of litigation where a person claims that a compromise of litigation should not have proceeded because of their mental state. Examples include Masterman-Lister v Brutton & Co [2003] 1 WLR 1511; and Goddard Elliott.
In Masterman-Lister, the plaintiff compromised litigation for damages for personal injuries in 1987, after receiving advice from counsel and solicitors. Six years later he issued proceedings against his former solicitors for professional negligence relating to the proceedings, and served the writ a further three years later. The plaintiff relevantly sought to reopen the settlement of his earlier claim on the basis that it had never received the approval of the court, and such approval was required under the rules of court because he was a 'patient' within the meaning of the relevant mental health legislation and was incapable by reason of mental disorder of managing and administering his property and affairs. The appeal court upheld the finding of the trial judge on a preliminary issue that the plaintiff had capacity when the action was compromised. The appeal court addressed and dismissed grounds of appeal that included formulating and applying the wrong test for capacity.
At the time of Masterman-Lister, there had been no other reported English decision directly concerned with the capacity to litigate and compromise, so the court looked to how capacity was considered in other contexts (at [11]-[14]). This decision continues to provide important guidance and has been applied in this jurisdiction.
In Goddard Elliott, the issue of capacity arose in the context of a negligence claim against the respondent's solicitors. The court found that the respondent did not have mental capacity at the time he gave instructions to his solicitors at the door of the court to settle family court proceedings. The proceedings involved complex commercial and taxation issues. The proceedings were settled for a grossly inadequate amount (at [751]). The respondent was known to have mental health problems during the course of the proceedings and it was known to his lawyers that his condition impaired his ability to give instructions (at [719], [723]). The respondent succeeded in his claim against his solicitors in negligence (amongst other claims) for taking and acting on his instructions when he did not have mental capacity, which his solicitors should have known.
I have selected the above cases because many are referred to in the discussion of the principles below or in the instructions to the experts. These cases reveal the need to take particular care to identify the nature of the capacity that might be required in any particular context, and the requirement that the court assess capacity, not bound by medical evidence, but having regard also to a range of lay evidence about events over a period of time that might be relevant to the task.
Principles - standard of mental capacity
As described by the High Court in Gibbons v Wright (at 437‑438), capacity is to be tested by reference to the particular transaction or conduct in which the person proposes to engage:
The law does not prescribe any fixed standard of sanity as requisite for the validity of all transactions. It requires, in relation to each particular matter or piece of business transacted, that each party shall have such soundness of mind as to be capable of understanding the general nature of what he is doing by his participation. … one test of the requisite capacity …[is] to consider whether the person concerned was capable of understanding what he did by executing the deed, when its general purport was explained to him. The principle … appears to us to be that the mental capacity required by the law in respect of any instrument is relative to the particular transaction which is being effected by means of the instrument, and may be described as the capacity to understand the nature of that transaction when it is explained.
Their Honours explained and applied that approach as follows (at 438-439):
Ordinarily the nature of the transaction means in this connection the broad operation, the 'general purport' of the instrument; but in some cases it may mean the effect of a wider transaction which the instrument is a means of carrying out: Manches v Trimborn (1946) 174 LT 344, at p 345. In the present case, it was necessary, we think, that the two sisters should have been capable of understanding, if the matter had been explained to them, that by executing the mortgages and the memorandum of transfer they would be altering the character of their interests in the properties concerned, so that instead of the last survivor of the three joint tenants becoming entitled to the whole, each of them would be entitled to a one-third share which would pass to her estate if she still owned it at her death.
(emphasis added)
In Masterman-Lister the test was described as issue-specific (at [27]). The standard, as described by Kennedy LJ, is 'related to the individual plaintiff and [their] immediate problem' (at [19]). Chadwick LJ held (at [58]):
The authorities are unanimous in support of two broad propositions. First, that the mental capacity required by the law is capacity in relation to the transaction which is to be effected. Second, that what is required is the capacity to understand the nature of that transaction when it is explained.
In Dalle-Molle v Manos [2004] SASC 102; (2004) 88 SASR 193, Debelle J provided useful guidance in the broader context of the capacity to give sufficient instructions to take, defend or compromise litigation. Debelle J observed (at [22]-[27]):
(1)the question whether a person has the capacity to give sufficient instructions in a litigious matter does not turn on whether or not the person has the requisite mental capacity to make some other legally effective decision;
(2)evidence of the capacity to make other decisions which have legal consequences and to conduct ordinary day to day affairs would be relevant but must be weighed with other evidence as adduced;
(3)even if the condition suffered by the person was one which rendered him or her vulnerable to exploitation or at risk of making rash or irresponsible decisions, it did not necessarily follow that he or she was unable to give sufficient instructions, but these matters must be considered with other relevant evidence;
(4)whether the person has the capacity to give sufficient instructions must be examined against the facts and subject matter of the particular litigation and the issues involved in that litigation. Accordingly, in a complex matter it may be necessary for careful advice and explanation to be given and for there to be time for consideration by the litigant;
(5)the level of understanding of legal proceedings involves an ability to understand the nature of the litigation, its purpose, its possible outcomes, and the risks in costs which is of course but one of the possible outcomes; and
(6)the qualification as to 'sufficient' instructions in the relevant rule meant instructions of a quantity, extent or scope adequate for the purpose or object of those instructions, signifying that a person is able, once an appropriate explanation has been given, to understand the essential elements of the action and is able then to decide whether to proceed with the litigation or, if it is a question to agreeing to a compromise of the proceedings, to decide whether or not to compromise.
His Honour's observations were referred to by Ward J in A v N [2012] NSWSC 354 at [392]‑[397]. In A v N the question, insofar as capacity was concerned, was whether the person referred to as 'E', who suffered from dementia, had capacity to enter into a deed which set out the basis on which the parties agreed to compromise court proceedings which were then on foot. The deed was entered into following a mediation conference attended by E. There was evidence that Mr Moore (counsel) had gone through the deed with E: at [429]. Her Honour relevantly concluded:
[445]I accept that the critical question is whether E had capacity to enter into the transactions provided for in the March Deed (not whether he had general capacity or testamentary capacity at that time). That capacity is measured by whether E would have understood the nature and effect of the transactions then being contemplated had such an explanation been given to him. By analogy with the authorities in relation to testamentary capacity, the question as to capacity is not whether he in fact understood (though that would be of relevance when considering the allegations of undue influence or unconscionable conduct and the like) or whether he acted in a rational manner in making the decisions that he did, but whether he was capable of understanding had an appropriate explanation been given.
In Hobhouse v Macarthur-Onslow [2016] NSWSC 1831, Robb J acknowledged that there may be a question as to what the High Court in Gibbons v Wright meant by the use of the expressions 'when its general purport was explained to him' and 'if the matter had been explained to them'. As Robb J continued:
[423]…The use of the word 'when' in the first of these expressions tends to suggest that an explanation is required, while the use of the word 'if' in the latter tends to leave open the possibility that the reference to an explanation is hypothetical.
…
[427]There is nothing in the reports of Ball v Mannin or Gibbons v Wright, or the authorities referred to by the Justices at 438, that suggest that there was any evidence in the particular case that any explanation had been given to the person whose capacity was in question, or that the outcome of the case in any way depended upon the adequacy of that explanation, and what effect it had on the understanding of the person. It would appear that the reference to an explanation in the expression 'capable of understanding, if the matter had been explained to them' was used to describe a level of capacity that must exist if an explanation had been given, not after it has in fact been given. Gibbons v Wright did not turn upon any explanation, let alone an extensive explanation, as suggested by Debelle J.
His Honour then observed the following with respect to A v N:
[428]In A v N, notwithstanding that her Honour had earlier set out aspects of the judgment of Debelle J in Dalle-Molle, as noted above, and also considered the relevance of the evidence in the case of the explanation given to the person whose mental capacity was in question, at [429], Ward J stated her conclusion at [464] in the following terms: 'I am not satisfied that N has discharged the onus of proving on the balance of probabilities that he lacked the mental competence on that date to understand, if the transactions contemplated under the March Deed had been carefully explained to him, what was provided for under that deed and to enter into it' (emphasis added).
See also Hanna v Raoul at [54], [161].
A person's capacity can also change from time to time. In A v N it was not in issue that E had dementia but it fluctuated from time to time, such that on any particular day it was possible that he had capacity to understand the relevant transaction: at [22]. In Murphy v Doman[2003] NSWCA 249; (2003) 58 NSWLR 51 the appellant lacked capacity at one court hearing, and had been detained voluntarily and then involuntarily shortly afterwards with a psychotic episode, but capacity was not in issue some 10 or 12 days later.
In Goddard Elliott Bell J said:
Mental capacity to settle proceedings
[559]An important question in the present case is the client's capacity to give instructions and consider advice about settling the proceeding. Those issues were considered by Lord Denning MR in Kirby v Leather [[1965] 2 QB 367]. Applying the same issue-specific test as was approved in Masterman-Lister, his Lordship noted that the plaintiff could appreciate 'something of what had happened to him' (being involved in an accident). However, he 'was not capable of instructing a solicitor properly. He certainly was not capable of exercising any reasonable judgment upon a possible settlement' [at 384]. This passage was cited with approval in Masterman-Lister … as it has been in Australian cases [Owners of Strata Plan No 23007 (2006) 153 FCR 398, 413 [59]].
As indicated, there are very few cases that address the particular words of O 15 of the County Court Rules. Applied in this case, those words are to the effect that Ms Rossi bears the burden of establishing that she was 'incapable by reason of mental infirmity of managing her affairs in relation to the proceeding'.
One of the relevant statutory tests in Erdogan was r 79.01 of the Supreme Court (General Procedure) Rules 2005 (Vic) which relevantly described a handicapped person as one who was 'incapable by reason of … mental infirmity of managing his or her affairs'. Similarly, in Secretary, Department of Health the Court applied r 9.61 of the Federal Court Rules 2011 (Cth), which when read with the definitions provision, provides that a 'person under a legal incapacity' means, relevantly, a 'mentally disabled person', who is 'a person who, because of mental disability or illness, is not capable of managing the person's own affairs in a proceeding'. In Dalle-Molle, the Court applied r 5 of the (then) Supreme Court Rules 1987 (SA), which was more specific than other provisions. It relevantly defined a 'person under disability' to mean 'any person, who by reason of physical weakness or intellectual or mental impairment or other condition whether temporary or permanent, is unable to give sufficient instructions to take, defend or compromise proceedings'.
The variation between these legislative provisions (and the position at common law) is to be carefully kept in mind, bearing in mind that the test for capacity is issue specific. For example, it is apparent that words such as 'managing affairs' will take their content from context. In Erdogan, it was said that 'affairs' takes its meaning from the language of the relevant provision, and refers to the beneficiary's property and their financial affairs. The beneficiary must demonstrate the capacity to make decisions in relation to his or her property and financial affairs (at [71]). And so '[t]o evaluate capacity, the nature of the responsibilities and transactions that management and administration of the beneficiary's property and moneys will entail, both at present and into the future, needs to be understood' (at [73]). Evaluating capacity in those circumstances might require consideration of many processes, information and risks (at [73]‑[75]). The focus of the assessment of capacity in the context of the compromise of litigation must be narrower. In A v N, for example, although there was litigation on foot, Ward J noted that the question of capacity did not relate to the conduct of litigation, nor to testamentary capacity, but to whether E had the mental capacity to enter into the settlement deed, containing as it did various agreements as to the disposition of property interests (at [401]).
With that caution in mind, I consider that in this case the words 'managing her affairs in relation to the proceeding' as used in O 15 direct attention not to a broad range of issues and responsibilities, but to the compromise of Ms Rossi's proceeding against Qantas by the Deed, requiring a similar approach to that adopted in Gibbons v Wright and A v N. This is expanded upon at [70]‑[74] below.
Role of expert and lay evidence
Many of the cases that address mental capacity reinforce the principle that it is for the judge to decide, on the basis of the totality of the evidence, both lay and expert, whether the particular legal test for incapacity has been satisfied. It may be that lay evidence may be more compelling than retrospective expert medical evidence. Some of those cases are in the testamentary capacity category: Zorbas v Sidiropoulous(No 2) [2009] NSWCA 197 at [65]; Drivas v Jakopovic [2019] NSWCA 218; (2019) 100 NSWLR 505 at [52], [65]-[67]; Croft v Sanders [2019] NSWCA 303 at [86], [128]; and Starr v Miller [2021] NSWSC 426 at [462], [487]‑[489] (upheld on appeal in Starr v Miller [2022] NSWCA 46).

The principles were also discussed more generally in Guthrie v Spence:
[194]That Professor Quadrio's reports do not address the ultimate question posed by s 11(3)(b) is by no means fatal. The task of deciding whether a plaintiff was under a disability within the meaning of s 11(3)(b) is not the sort of matter that is capable of being solved by medical evidence alone, and there are limits on the assistance a judge can derive from medical evidence. In performing that task, medical evidence can sometimes be of great assistance in deciding whether a person has been suffering from an impairment of his or her mental condition. However, even that element of the definition could in some circumstances be proved by lay evidence, of enough instances of aberrant or inadequate behaviour. Medical evidence about the way in which a particular mental condition manifested itself could also be of assistance in concluding that it was by reason of an impairment of the plaintiff's mental condition that he or she was impeded in management of affairs in relation to the cause of action. Again, however, even that element could in some circumstances be proved by lay evidence, particularly when the impairment of mental condition was gross.
[195]Even when medical evidence is available that bears upon whether a person had capacity, for some legal purpose, it is frequently expressed in terms appropriate for a medical diagnosis. Expert evidence can be very helpful in identifying the circumstances from which the diagnosed condition arises, and how it manifests itself in the patient's life. But the legal test for incapacity that is applicable in some particular litigious circumstance is usually not expressed in terms of medical diagnosis. It is for the judge to decide, on the basis of the totality of all the evidence, both lay and expert, whether the particular relevant legal test for incapacity has been satisfied. In Re Estate of Griffith (Dec'd); Easter v Griffith (1995) 217 ALR 284 at 295, Kirby P said, concerning testamentary incapacity:
In judging the will propounded, and the challenge to it, the court must consider all of the facts proved which are relevant to the testamentary capacity of the testator. It must not be deflected into a consideration of medical evidence, still less of jargon, as to whether particular conditions such as 'delusion' or 'paranoia' have been established.
Though these remarks were made in a dissenting judgment, they are a correct statement of principle. The same applies concerning s 11(3)(b).
[196]The need for more than medical evidence to be taken into account in deciding whether incapacity has been established has been recognised, in litigious contexts outside that of limitations, in Kerr v Badran [2004] NSWSC 735 at [48]-[50]; Revie v Druitt [2005] NSWSC 902 at [34], Ric Developments Pty Ltd (t/as Lane Cove Poolmart) v Muir (2008) 71 NSWLR 593 at 598 [22], 603‑4 [48] and Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 at [65].
[197]Deciding whether a particular plaintiff's ability to deal with the practical tasks of initiating litigation has been impeded is often a matter of inference rather than something proved by direct evidence. It could not be expected that the ordinary skill and training of a medical practitioner would inform them of the nuances of the test for disability that s 11(3)(b) poses, and here Professor Quadrio was given no help in trying to grasp them. Further, the question of whether a person has been substantially impeded in the management of his or her affairs in relation to the cause of action is a mixed question of fact and law, because it involves an evaluation of whether such impediments to management of affairs as have been shown to exist amount to the plaintiff being 'substantially impeded'. The evaluative element in making that decision is one for the judge alone. That is why Professor Quadrio's report by itself would not have been enough to establish the disability.
[198]Where the ultimate issue for determination by a court involves a pure question of the existence of a medical condition, it may be appropriate and inevitable that an expert will address the ultimate issue directly. Where, as here, the ultimate issue involves other considerations, it will often be inappropriate to expect (or even invite) the expert to address that issue.
PART C - INTRODUCTION TO ISSUES AND WITNESSES
Summary of respective cases
Although pleaded in a somewhat broader manner, Ms Rossi's case as submitted by her counsel is that between 1.00 pm and 2.00 pm on 29 October 2008, being when she signed the Deed, she did not have the mental capacity to understand the nature of the transaction she entered into (reply submissions, para 12). Her ability to understand the consequences of signing the Deed were 'affected by her severe depressive mood causing her to lack confidence to refuse to sign the Deed or to process the information provided by her lawyers (if given to her)' (reply submissions, para 48). It is not her case that she lacked capacity at all relevant times, but at that particular time. She asserts (in her reply submissions, para 22(r)) that her conduct even two days beforehand is not relevant to that assessment. Her case is that when she was presented with the Deed at the 29 October conference, parts of which she read, she did not understand how the Deed was to her benefit, and that she signed it to get out of the situation.
Qantas' case is that Ms Rossi's own evidence is sufficient to establish that she actively participated in the settlement process, understood it and decided to sign the Deed, being aware of the consequences of not doing so. It contends that while she may regret that decision, it is not a case of incapacity. Qantas submits, however, that it would be sufficient for the Court to find that Ms Rossi has not proven that she was unable to understand the Deed even if it had been explained.
The approach to capacity
As indicated, central to this case is whether Ms Rossi lacked the capacity to enter into the transaction provided for by the Deed, measured by whether she would have understood the nature and effect of the transactions then contemplated if an explanation had been given to her: Gibbons v Wright.
Ms Rossi was involved in court proceedings to seek a monetary amount by way of benefits. It is sufficient that she had capacity to understand something of her prospects of success, that any claims against Qantas would be resolved and come to an end if a settlement was achieved, that there would be no necessity for a trial, and that she would be paid the relevant sums (the terms of the Deed are addressed below at [209]‑[215]).
In this case it has not been suggested by Ms Rossi that she did not have capacity to manage the proceedings as a whole. Nor was there any contemporaneous evidence of any suggestion from treating doctors, lawyers or others that the appointment of a litigation guardian should be considered at any stage.
I do not consider the narrow approach propounded by Ms Rossi properly reflects the approach the Court should take in these circumstances. I do not consider I am limited to considering evidence as to Ms Rossi's competence at the precise moment (or hour) of the signing of the Deed. Whilst any such evidence is important, the authorities indicate that the court frequently looks to the events surrounding the execution of a document in assessing whether capacity might be inferred: Scott v Scott [2012] NSWSC 1541 at [197]‑[200].
This was a compromise entered into during a three day period that had as its focus an attempt to mediate the dispute, a period involving Ms Rossi, her lawyers and lawyers for Qantas. The evidence of what occurred in those days is relevant to ascertaining and understanding the circumstances in which Ms Rossi signed the Deed, including ascertaining what she knew at the time about the prospects of her claim against Qantas and the purpose of the mediation conference. Having said that, it is the events of 29 October 2008 that are central to the retrospective assessment of Ms Rossi's capacity.
The witnesses
Ms Rossi gave evidence and was cross examined. She tendered six affidavits sworn between 12 February 2020 and 26 February 2021.
Evidence was also given on Ms Rossi's behalf by Dr Singleton and Ms Allan, both of whom treated her prior to and during 2008.
Dr Singleton provided affidavit evidence and a report and was cross examined. Qantas accepted that Dr Singleton was entitled to give expert evidence in her field as a general practitioner, but not as though it were expert psychiatric evidence.
Ms Allan provided affidavit evidence and a report and was cross examined. Ms Allan's notes were the subject of a subpoena and were produced, albeit that some were produced after she gave evidence. Ms Allan was called by Ms Rossi as an expert and lay witness. Qantas submitted that no weight should be given to her evidence (to the extent it purported to be expert evidence) on the basis that she was not suitably qualified to give the evidence she purported to give, and objected to it more generally on the basis that she lacked independence and her evidence was said to display collusion with Ms Rossi.
Ms Rossi also called Dr Enrico Parmegiani, a psychiatrist who provided a number of reports and was cross examined. Dr Parmegiani consulted with and assessed Ms Rossi for the purpose of this proceeding in October 2020. He was also provided with copies of her affidavits and medical reports. He was not Ms Rossi's treating psychiatrist. Qantas submitted that Dr Parmegiani's reports should be rejected or given no weight for a number of reasons, including because they were infected by his consultation with Ms Rossi in 2020 and strayed into the inadmissible territory of attempting to determine her subjective state of mind on 29 October 2008.
Qantas called two lay witnesses, Mr McCristal and Mr Hutchinson, both of whom were present at the settlement conferences on 27 October 2008 and 29 October 2008. Both provided affidavit evidence and were cross examined.
Qantas also relied on an affidavit of Talia Firth. Ms Firth is a lawyer from Ashurst who represents Qantas in this matter. The affidavit was the means by which a number of documents were to be tendered. As discussed further below, I have not admitted Ms Firth's affidavit in full, but I have admitted particular documents attached to the affidavit upon which there was cross examination or which were referred to in the written submissions.
Qantas called Dr Leonard Lee, a medico-legal psychiatrist. Dr Lee did not consult with Ms Rossi. He relied upon and commented on Ms Rossi's affidavits and documents provided to him in order to give what he described as a qualified written opinion dated 25 November 2020 as to her capacity. Ms Rossi objected to the admissibility of Dr Lee's opinion as a whole, submitting that it did not comply with this Court's legislative and practice note requirements; its format and presentation were confusing; and Dr Lee's reasoning process was opaque.
It will be necessary to return to these various objections to the evidence.
Conduct of trial
The hearing of evidence in this matter was delayed and rescheduled to accommodate certain requests by Ms Rossi as to the manner in which she might give her evidence. It is not necessary to detail the course of applications, communications and evidence in that regard. In the end, Ms Rossi gave evidence by video link. As COVID-19 directions were in place at least during parts of the proceeding, the trial as a whole proceeded by video link and this approach was coordinated and agreed to by the parties and counsel. However, it is important to note the additional cooperation between Ms Rossi and Qantas as to other steps that were implemented. Relevantly, a real time transcription service was utilised so that Ms Rossi could read questions as they were asked of her, rather than only hearing them. Short breaks were provided to Ms Rossi upon request. Twice in closing submissions Ms Rossi submitted that those adjustments were required to allow her to participate in this trial given her condition. By that submission Ms Rossi seemed to suggest that the Court accepted that such adjustments were required (ts 495, reply submissions para 21(k)). That is not the case. The fact that these steps were put in place did not indicate any acceptance of any particular medical need or condition, especially insofar as the events of 2008 were concerned. No concessions were made by Qantas in cooperating in this process and no determinations were made in that regard by the Court. Putting those steps in place by consent was a simple and effective way of ensuring the trial would proceed in a manner that Ms Rossi considered would enable her to fairly give her oral evidence.
PART D - EVENTS
I turn now to examine the events relevant to Ms Rossi's capacity at the time of signing the Deed. Some of the detail that she sought to present was not relevant to resolving the issue of capacity. I have not attempted to set out all of Ms Rossi's evidence, but instead gather below the evidence about key events and evidence that I have found useful in assessing the reliability and weight of competing evidence relevant to the question of capacity.
Formal claims against Qantas culminating in writ
Ms Rossi was employed by Qantas from 1988 until she applied for and received a voluntary redundancy package effective 1 July 2003.
In August 2006 Ms Rossi filed a worker's claim form under the Accident Compensation Act1985 (Vic), claiming that she had been injured by way of being victimized at work and not given appropriate feedback and support. She claimed the injury was caused by personal comments and remarks not relevant to her job.
After investigating the claim, Qantas rejected it in September 2006.
Ms Rossi then requested conciliation. Ms Allan provided a report for the purpose of the conciliation conference.
The conciliation conference was conducted in December 2006 but was unsuccessful, the officer concluding that she was satisfied that there was a genuine dispute as to the liability to make or continue to make weekly payments and payments of compensation.
On 23 July 2007 MBC served an application for compensation on Qantas. On 19 October 2007 a writ was issued by Ms Rossi against Qantas in the County Court of Victoria claiming weekly payments of compensation from 1 July 2003 onwards together with 'medical and like expenses associated with the injury'.
To paraphrase, Qantas denied liability in its defence on the basis that it was not satisfied that Ms Rossi's injury arose out of the course of her employment as required by the Accident Compensation Act, and nor was it satisfied that her employment was a significant contributing factor to the claimed injury. It contended that due to the time that had elapsed the claim was precluded by s 103(5) of the Accident Compensation Act.
The dispute was apparently listed for hearing in November 2008.
MBC engaged to act
Mr McCristal deposed that he first consulted with Ms Rossi in around July 2007 at the office of what became MBC.
Mr McCristal was admitted to practice in 1996 and had worked at the law firms Slater and Gordon and Maurice Blackburn. In 2001 he acquired the business of MBC and he was the principal solicitor of that firm at the time of the relevant events. He has specialised for many years in workplace stress claims.
Mr McCristal recalled from his initial meeting with Ms Rossi that she was articulate, and that based on her instructions he thought she had a reasonable workers' compensation claim against Qantas.
Mr McCristal referred to a letter of advice of 23 July 2007. The letter was not written by Mr McCristal, but by a colleague, Thierry Auffray (who had met with Ms Rossi before Mr McCristal assumed conduct of the matter). It was headed 'Your WorkCover Claim'. In it Mr Auffray confirmed Ms Rossi's instructions that she sustained a stress related injury in the course of her employment; that the self-insurer had rejected her claim for weekly payments and medical and like expenses; and that the matter did not resolve at conciliation. It then provided what appears to be standard form information about rights under the Accident Compensation Act. As to injuries occurring after 20 October 1999, it said that injuries may entitle the worker to: weekly payments for incapacity; reasonable medical and like expenses; lump sum compensation for non-economic loss upon medical assessment; and certain common law damages for negligence subject to there being a 'serious injury' (definition provided).
The 23 July 2007 letter concluded:
We confirm our advice that you have reasonable prospects of success of challenging the self insurer's decision to reject your claim.
We confirm your instructions to [issue] proceedings in the County Court challenging the insurer's decision to reject your claim for compensation.
We confirm that we are prepared to take your case on a no win/no costs basis. This means that in the event that [you] are unsuccessful in obtaining compensation, we shall not render you an Account for our professional charges.
We advise that it is our view that your prospects of bringing a Common Law claim or Negligence claim against your employer is risky and difficult. In this regard you would need to demonstrate before the Court that the employer should have [reasonably] foreseen that you would develop a psychological/psychiatric injury as a consequence of their actions.
In the circumstances we do not believe that you have reasonable prospects of success of bringing a Common Law Claim or Negligence claim against your employer.
If you disagree with our advice it will be necessary to obtain an opinion from a Barrister and the costs to obtain such an opinion will be between $750.00 and $1,000.00.
Ms Rossi also signed a standard 'no win - no charge' costs agreement letter dated 27 July 2007, signed by Mr McCristal on behalf of MBC.
As noted, on 23 July 2007 MBC served on Qantas a copy of an application for compensation on behalf of Ms Rossi, describing the injury as anxiety, depression and post-traumatic stress disorder.
On 6 September 2007 Mr McCristal wrote to Ms Rossi informing her that MBC had arranged a medical examination for 20 November 2007 with Dr John Gill, a forensic psychiatrist.
On the same date Mr McCristal sent a separate letter to Ms Rossi, which relevantly referred to a meeting with Ms Rossi that day and stated that: her medical records had been requested from her 'treaters'; her file had been requested from the insurer (presumably Qantas); once a claim was accepted they would advise Ms Rossi as to the prospects of obtaining a serious injury certificate and bringing a negligence claim; and a brief had been sent to a barrister to draw a statement of claim and issue proceedings. It also informed Ms Rossi that Qantas had arranged for her to be assessed by Dr Jackson in relation to her claim for permanent impairment benefits.
Psychiatric assessments
Dr Gill provided a psychiatric report dated 27 November 2007. As mentioned above, he opined that, accepting the history of discrimination and harassment reported by Ms Rossi, her psychiatric injury was caused by her workplace. Dr Gill rated her (applying the 'American Medical Association Guides to the Assessment of Psychiatric Impairment') as having an overall permanent psychiatric impairment of 40%, with a 100% level of impairment for industrial purposes.
Dr Gill recounted in his report that Ms Rossi had been treated for depression prior to the alleged workplace conduct by Qantas. He recounted that Ms Rossi disclosed to him that she had experienced an episode of anxiety and panic in 1999, had a period of stress some 15 years earlier, and that nine years earlier had seen a general practitioner who prescribed her antidepressants for a short time.
During January 2008 Qantas' lawyers issued subpoenas to a number of doctors and medical centres seeking production of documents relating to Ms Rossi's medical history. One of the subpoenas was directed to a Dr Halliday.

Sometime in early 2008 Ms Rossi was also assessed by Dr Jackson, as had been anticipated. He provided a report dated 27 February 2008. He had previously assessed Ms Rossi in 2006. Dr Jackson stated that it was very difficult to make a satisfactory psychiatric diagnosis of Ms Rossi, but the most appropriate formal diagnosis remained that of a major depressive disorder with associated anxiety and specific phobias.
Change in the psychiatric assessments
Mr McCristal subsequently also obtained Dr Halliday's notes, and this caused him some concern, as they apparently referred to Ms Rossi's having a history of treatment by psychiatrists.
On 22 April 2008 Mr McCristal provided those notes to Dr Gill, asking Dr Gill to advise whether they changed his earlier opinion.
On 24 April 2008 Mr McCristal wrote to Dr Gill confirming a further appointment for Ms Rossi with him.
Also on 24 April 2008, Mr McCristal drafted a letter to Ms Rossi in which he set out his concerns about information within Dr Halliday's notes that referred to Ms Rossi being on anti‑depressant medication since 1996, and being referred to a Dr George (a psychiatrist). Mr McCristal said he read from Dr George's notes that Ms Rossi had many sessions with him between 1996 and 2000. The notes also referred to other medical treatment over a five year period from a Dr McCafferty (also a psychiatrist). There was a report from Dr George amongst the materials. Mr McCristal expressed concern that Dr Gill would change his opinion if those materials were put to him, and that Dr Gill would say that the history provided by Ms Rossi to him was inaccurate, so calling into issue her credit.
The letter stated:
We refer to this matter and advise that we are still waiting on the notes of Dr Altamat.
We confirm that the Defendant has subpoenaed the notes of Dr Ann Halliday, which refer to you commencing anti depressant medication in July 1996. The notes also refer to you being referred to Dr George. Once the Defendant inspects the records, it is likely that they will subpoena the records of Dr George.
Having read the notes of Dr George, I am extremely concerned, given the number of sessions that you had with him over the period 1996 to 2000.
Once the material is put to Mr Gill it is likely that he will change his opinion, based on the past psychiatric history that you gave him. In this regard, he is likely to find that the history provided was not at all accurate. This may lead to your credit being called into issue in any future trial.
We recommend that the matter be referred to the Medical Panel. The advantage of this tactic is that you will not be subjected to cross examination. In the event that you were subjected to cross examination, it would be likely that the Defendant's Barrister would ask you to explain to the Court why you provided such a totally inaccurate history to both the Defendant's Psychiatrist, Mr Jackson and to Mr Gill.
We also note that there is a medical report from Dr John Isles in the clinical notes of Ann Halliday. Dr Isles refers to you having been treated for five years with Lawrence McCafferty. Please provide instructions in relation to this aspect of your treatment.
A report from Dr George is also present in the clinical notes. It is likely that the Defendant will subpoena this material.
Whether this letter was sent to Ms Rossi is in issue. Two copies were before the Court, one of which has a line through it with the note 'don't send'. Mr McCristal did not claim to recall the particular circumstances as to why there were two copies of the letter. He said that he believes that the first copy of the letter was sent to Ms Rossi and the second was endorsed to avoid duplication. However, he said that if it were not sent, then that would have been because he had spoken to Ms Rossi over the phone about the contents of the letter and so there was no need to send it.
Ms Rossi accepted that there was a telephone conversation between her and Mr McCristal on 24 April 2008 about her historical records. Her affidavit evidence was to the effect that Mr McCristal said that he had received her records from Dr Halliday and that they contained various letters from practitioners she had consulted in the 1980s and 1990s, and that he said it appeared that she may not have given him her full history of depression. Ms Rossi said she told him that she didn't know what he was talking about, and that she had told Mr Auffray about her ex‑partner and son and answered all questions put to her. Ms Rossi denied under cross examination that Mr McCristal raised with her during this conversation any concern he might have had about what Qantas might do with knowledge of Ms Rossi's past medical history. However, she knew he had concerns about whether she had been 'lying' about her medical history 'because he had raised them on the 24^th'.
According to her notes, Ms Allan had a telephone conversation with Ms Rossi on 5 May 2008. Ms Allan's notes of that meeting include this extract:
John (lawyer) - will still proceed
- concerned about what Qantas will try to do (to Sara)
- wondered why Sara has been depressed so often
Ms Rossi says she was diagnosed with cancer in mid-2008 and required major surgery. She said that she told Mr McCristal about this on or about 16 July 2008, and that it was the last time she spoke to him before the conference.
On about 17 July 2008 Ms Rossi was assessed by Dr Kornan at the request of Qantas, who produced two reports, dated 22 July 2008 and 30 July 2008. Dr Kornan's first report referred to a more detailed history of depression dating back to 1986, and the fact that Ms Rossi had been treated by psychiatrists over the course of a number of years. She had been treated by Dr George, for example, for three or four years in 1997 until the beginning of 2000, every five or six weeks. Dr Kornan's second report referred to additional medical evidence received, including Dr Jackson's report and records from Dr Stringer, and concluded that the more evidence he saw, the more tenuous it appeared to him that her current difficulties arose from Qantas. I interpolate to observe that the history set out in the reports is considerably more detailed than that that set out in Dr Gill's first report.
Mr McCristal also received a copy of the report prepared by Dr Jackson dated 25 June 2008. Dr Jackson stated, amongst other things, that he had received additional documentation which was consistent with a diagnosis of depressive illness that predated the events at Qantas, and which caused him to conclude that her psychiatric and psychological state predated her work with Qantas. This report was provided to Dr Gill on 22 August 2008, with a request that Dr Gill provide comments on it.
Dr Gill provided a supplementary report dated 15 September 2008. Ms Rossi apparently also attended an appointment with Dr Gill on that date.
Dr Gill received additional materials for the purpose of the supplementary report, including medical records and reports for the period 1991 to 2000 addressing Ms Rossi's mental health. These included clinical notes from Dr Halliday, a report from Dr Isles from 1991, a report from Dr McCafferty from 1993; various letters from Dr Stringer, including to Dr Halliday; a letter from Mr de Jong from 2000 and letters from Dr George from 1998 and 2000. I note that Dr Gill refers in a further report to each of Dr Isles, Dr McCafferty, Dr Stringer and Dr George as psychiatrists. Mr de Jong is described as a psychologist. Dr Gill also referred to Dr Jackson's report of 25 June 2008.
Dr Gill re-assessed his earlier opinion, stating the following in his supplementary report:
… However, in contrast to my previous assessment, I must conclude that on the basis of the extensive documentation which I have seen subsequently and which outlines Ms Rossi's pre-existing psychiatric problems, it is not possible to attribute the bulk of her psychiatric symptoms to work-related factors at Qantas between 2001 and 2003. However, in view of the fact that there has been significant deterioration in her mental state since 2001, as evidenced by the documentation from Ms Allan, it is my view that the work-related factors have made a significant, albeit minor, contribution to the causation of her current Chronic Depressive Disorder.
It should be noted that apparently Dr Jackson had not seen Ms Allan's documentation prior to preparing his report dated 25 June 2008.
I estimate that the likely work-related component of Ms Rossi's psychiatric impairment is 5%. In terms of a broader percentage impairment assessment than that, using AMA 4^th Edition criteria, and taking into consideration the diagnostic information, the degree of pain and suffering and the social, domestic and industrial affects of Ms Rossi's condition, I would consider that for industrial purposes she has a 12% level of impairment attributable to work-related stress injury.
…
The documentation which you have provided provides extensive evidence of psychiatric opinions from doctors who have treated Ms Rossi since the early 1990s for significant psychiatric difficulties.
…
Given that these problems have predated the stress she experienced at work from 2001, I must alter my opinion in relation to the causation of Ms Rossi's psychiatric condition. Although I have not altered my view that she remains severely impaired, I consider that the work-related contribution to her current condition is a relatively minor factor in the causation of her depressive illness, in comparison to the pre-existing factors …
On 18 September 2008 Mr McCristal provided a bundle of medical reports to Qantas' lawyers from the period 2003 to 2008.
On 10 October 2008 Dr Gill provided a second supplementary report specifically addressing Dr Jackson's June 2008 report.
Dr Gill wrote:
Dr Jackson has provided a thorough analysis of the documentation and essentially he has concluded that Ms Rossi's psychiatric condition represents a depressive illness and personality features which pre-existed her work-related problems at Qantas and that her more recent presentation does not appear to differ significantly from her condition as depicted in the documentation prior to the alleged work-related stress. …
In his review of the documentation, presumably Dr Jackson did not have available to him the material you have provided to me from Ms Rossi's psychologist Ms Amanda Allan. Ms Allan has indicated that she has known Ms Rossi for a period of five years, from August 2001 to October 2006. She considered that Ms Rossi was suffering 'ongoing severe depression and anxiety, with associated somatic and social dysfunctioning'. She noted that Ms Rossi's reports of having been alienated and victimised at her workplace.
She concluded her report dated 30 October 2006 with the statement: 'It has been disturbing to witness the psychosocial demise of Sarah's functioning since first meeting her in late 2001, and I endorse every effort for her to receive acknowledgement for what she has suffered in the event of any absence of appropriate and respectful organisational support.'
It would therefore appear from Ms Allan's documentation that Ms Rossi has experienced a significant deterioration in her mental state and her level of functioning since the onset of her work-related stressors.
It is on the basis of the information provided by Ms Allan that I have formed the opinion that although for the reasons outlined by Dr Jackson, Ms Rossi's psychiatric condition is very largely attributable to pre-existing depressive illness and personality factors, there is a minor contribution attributable to the work-related stress factors between 2001 and 2003. I estimate that Ms Rossi has a psychiatric impairment of 5% attributable to work-related causal factors and 35% impairment attributable to non work‑related factors.
(original emphasis)
Whilst disclosure of some of the material in these extracts will no doubt be upsetting for Ms Rossi, I have included them for a number of reasons. First, as will become apparent, the reduction in Dr Gill's assessment of the percentage of impairment attributable to work place stress was critical to the advice given by Mr McCristal and Mr Hutchinson to Ms Rossi to settle her claim. Second, Ms Rossi knew about the reduction in that assessment prior to 29 October 2008, and both the reduction and the suggestion that she had initially failed to disclose her full history to Dr Gill caused her considerable concern. Third, (as I find below) Ms Rossi knew that Qantas might take advantage against her interests of the differences in her given history reflected in the reports. Fourth, Dr Parmegiani and Dr Lee were provided with copies of the reports of Dr Gill and Dr Jackson, amongst other materials.
For completeness I note that none of Dr Gill, Dr Jackson or Dr Kornan gave evidence and their reports were not admitted as evidence of the truth of the matters asserted or the truth of the matters about which opinions were expressed.
Other events prior to the settlement conference
Letter informing Ms Rossi about the settlement conference
On 9 October 2008 Mr McCristal wrote to Ms Rossi, stating:
We refer to previous correspondence and advise an informal settlement Conference has been arranged for Monday 27 October 2008 @ 2.00pm - Sparke Helmore Lawyers, Level 40, 600 Bourke Street, Melbourne.
Your attendance is required on the day.
The purpose of the Conference is to try and reach agreement over settlement of your claim. The Defendant's Solicitor will also be in attendance.
We have briefed Mr. Brent Hutchinson to appear on your behalf at the Conference and we request that you attend Owen Dixon West, 2^nd Floor, Room 223, 525 Lonsdale Street, Melbourne at 1.00 pm prior to conference to meet with Mr. Hutchinson to discuss [your] claim.
Our John McCristal will also be in attendance.
Ms Rossi did not deny receiving the letter.
Ms Rossi's attempts to contact Mr McCristal
Ms Rossi said she attempted to contact Mr McCristal by calling his office on or around 22 September, 13 October and 24 October 2008. She suggested that Mr McCristal had barred his staff from speaking to her. She also said that scheduled meetings with Mr McCristal on 24 September and 1 October 2008 were cancelled.
Mr McCristal said that he did not recall being told that Ms Rossi had called to speak to him and did not recall whether any meetings were cancelled or why, but he denied any allegation that he deliberately avoided speaking with Ms Rossi or answering telephone calls.
What is apparent, however, is that the there is no evidence that Mr McCristal provided additional advice to Ms Rossi about her claim prior to 27 October 2008, apart from that already referred to.
Appointment with Ms Allan 21 October 2008
According to Ms Allan's notes, on 21 October 2008 she had a consultation with Ms Rossi. Ms Allan noted:
Sara distressed with the uncertainty of processes heading into Monday (mediation with Qantas Spark & Helmore (pre-court).
Appointment with Dr Singleton 22 October 2008
On 22 October 2008, Ms Rossi attended an appointment with Dr Singleton. According to Dr Singleton's notes, the appointment covered medical matters in addition to 'anxiety with depression'. Dr Singleton's note of the appointment states:
remains v distressed re being unable to contact John. feeling vulnerable / frustrated. counselled. increasingly concerned about outcome of case fearful that she will not be believed or that she will be unable to express the depths of the impact that her work injury has had on her life. fearful about being judged. counselled at length. review after conciliation hearing on Monday.
…
27 October 2008 pre-conference meeting (Monday)
Ms Rossi attended the scheduled pre-conference meeting with Mr McCristal and Mr Hutchinson at Mr Hutchinson's chambers. Ms Rossi said that it lasted for about 15 to 20 minutes because Mr McCristal was running late. Ms Rossi had by then received copies of the reports of Dr Jackson and Dr Kornan.
In her affidavit evidence, Ms Rossi said that at the meeting she was shown the medical reports of Dr Gill dated 15 September 2008 and 10 October 2008, which referred to the circumstances of her employment causing only 5% of her workplace in injury. She said that she did not understand how Dr Gill had changed his opinion. She told Mr McCristal that she did not agree with the report and asked him to explain further. Mr McCristal said that Dr Gill had changed his percentage rating due to her medical history.
Ms Rossi said under cross examination that she was not given Dr Gill's reports at the meeting and was only shown the back two pages where he had changed his percentage (this detail about seeing only the last two pages was not referred to in her six affidavits). She said she recalled that Mr McCristal read out part of the report relating to the percentage change and to the diagnosis, and that she believed the diagnosis was inaccurate and inconsistent with previous reports that she had received.
She said that when Mr McCristal read out Dr Gill's changed diagnoses she used words such as 'these reports are a lie, they are not accurate' and 'this cannot be right'. She said that she was 'shocked' by Dr Gill's change to his opinion, although she accepted that she had already known by then from Dr Jackson's report that she felt as though she was on trial regarding her medical history and life events. She also accepted that she knew by then that Dr Kornan was of the view that her pre-existing medical history was the cause of her medical conditions, and not Qantas, and said she had tried to talk about this with Mr McCristal. She said it was 'a surprise to me that they all hold the view that they do given that I have experienced what I've experienced'.
Ms Rossi said she described the new Dr Gill reports as being a 'lie' or words to that effect, because she wanted her lawyers to understand that she disagreed with Dr Gill's conclusions.
She accepted that at the meeting she talked about her concern that records from Louise Buchanan had not been provided to the psychiatrists. She expressed concern that the psychiatrists had gone to great lengths to disseminate 20 year old medical records which she believed to be irrelevant. She asked Mr McCristal to get the additional notes from Ms Buchanan that had been provided under subpoena (Ms Buchanan was a psychologist with whom Ms Rossi had consulted under the Qantas Employee Assistance Program (EAP)).
Ms Rossi said that Mr McCristal said at this meeting that he would not represent her in court if she did not pay him upfront.
In her fourth affidavit Ms Rossi said that she felt sick at the conference, that she was being cut off by Mr McCristal and Mr Hutchinson, that they were trying to shame her, and that her heart was racing and she felt her blood pressure increasing. She said she felt 'completely paralysed'.
Mr McCristal gave evidence about the meeting. He said he discussed with Ms Rossi that her prospects had changed following the receipt of Dr Gill's report. He recalled that he had discussed with Ms Rossi his belief that her claim did not have good prospects, and that Mr Hutchinson and he spent some time explaining the issues to her. He said he explained what to expect at the mediation to the effect that she would sit in another room while there would be some negotiation where the lawyers were more likely to speak frankly, and that if an offer was made they would come and speak to her. He said they were really only talking about compensation entitlements with Ms Rossi and what she might expect. He accepted it was possible that he did not give copies of Dr Gill's reports to Ms Rossi, noting that it was his firm's policy at the time not to provide them prior to payment. He denied Ms Rossi said the reports were not accurate, although he accepted it was possible she said something in objection to the reports. He doubted there was any reference to a deed or the like because at that stage he did not know whether there would be any settlement offer.

In his final report, Dr Parmegiani said:
Overall, having considered my clinical findings, my own review of the documents concerned, my interview of Ms Rossi and further review of Dr Lee's report, I am not satisfied that Ms Rossi at the time of signing the deed fully understood the issues, registered and was able to articulate the consequences of not signing.
A number of important points came out of cross examination:
(1)Dr Parmegiani's diagnosis in 2020 was a current diagnosis, based on her presentation and guided by her history, and he accepted it is most accurate as a current assessment.
(2)His reports were based 'in good part' on his clinical assessment and what Ms Rossi told him.
(3)He considered the assessment that he had undertaken with Ms Rossi was important because it had been a long consultation taking into account 'her emotional [lability] and tendency to lose track of things', and he found that instrumental in forming his opinion (Dr Parmegiani refers in his 22 February 2021 report to emotional lability/arousal). He considered that clinically she would 'not have been too dissimilar' at the time of the events, having regard to her ongoing, untreated major depressive disorder. He considered the diagnosis of persistent depressive disorder had remained stable for the last 13 years at least, although there may have been fluctuations, 'as is not uncommonly the case in depression'. He found her to be anxious with him despite him being sympathetic, and assumed that she would have been more distressed in a situation that was more confrontational.
(4)Dr Parmegiani also took into account the documents provided to him, which included Ms Rossi's affidavits, medical and psychiatric reports. He took into account the factual matters that Ms Rossi told him about what she did, observed or felt. He did not see any evidence from others who participated in the conferences.
(5)Dr Parmegiani assumed that the circumstances in which the Deed were signed included that Ms Rossi felt overwhelmed and paralysed (as her affidavit said that); that the solicitors had told her she was lying; that the reports were against her; and that if she didn't sign the Deed she would be up for several hundred thousand dollars, at a time when she was receiving the disability pension.
(6)He proffered that one of the reasons he concluded (at (G) in the second report) that Ms Rossi was unable to give clear instructions was based on Ms Rossi reporting that when she tried to speak to her lawyers her words came out 'all jumbled and they couldn't understand her', and he said that jumbled meant 'to the point of gibberish, when nothing makes sense', and that this would give rise to quite serious questions about one's cognitive ability.
(7)The passage of time (13 years) was relevant. Any test carried out at the time (29 October 2008) would have been much more conclusive, but in this case it was necessary to rely on reconstruction based on clinical assessment and a review of the documents.
(8)The diagnosis and symptoms could affect Ms Rossi's capacity - and he 'could even stick [his] neck out and say they most probably did'.
Dr Parmegiani agreed that he could not give conclusive evidence as to Ms Rossi's state of mind on the day of signing the Deed, and said that nobody would with absolute certainty unless they were there and assessed it at the time.
He maintained under cross examination the view that in general terms Ms Rossi was able to understand the general nature and effect of the Deed, and that she was generally able to understand any advice given by her lawyers regarding the nature of the Deed and its purpose, including its possible consequences and especially the risks in terms of legal costs. When taken to his conclusion in the supplementary report of 4 November 2020 (see [360] above), he agreed that he was not saying it was impossible for Ms Rossi to consider the matters at hand, it was just impossible for her to carefully consider the matters at hand; and that he was not saying it was impossible for Ms Rossi to make judgements about the matters at hand, but, rather, to make reasoned ones.
Dr Parmegiani acknowledged that a 'good part of that opinion' in his first report to the effect that Ms Rossi felt 'under duress to comply with instructions' (see [358] above) was based on the circumstances of signing as told to him by Ms Rossi.
When taken to the final report and the extract above (at [361]), Dr Parmegiani confirmed that the reference to Ms Rossi not being able to articulate the consequences was a reference to the report that Ms Rossi herself had given to him; that the reference to 'fully understood the reasons' meant everything that could have been relevant to her reasons; that he remained of the view that Ms Rossi was able to understand the general nature and effect of the Deed and was able to understand the advice given by her lawyers regarding the nature of the Deed, its purpose and the consequence and risks; and that it was not that she could not understand the Deed, but that her emotional state was such that she believed that she didn't have an alternative but to do so.
I accept, having regard to Dr Parmegiani's diagnosis and his assessment of the other medical evidence provided to him, that Ms Rossi had at the relevant time and continues to suffer from symptoms of a major depressive disorder (this does not mean that I accept that the symptoms or effects of the disorder have been consistent or constant since pre-2008 up to and including the time of his assessment in 2020, and I will return to this).
Regardless of the diagnosis, his opinion with respect to Ms Rossi's capacity must be considered taking into account the findings of fact that I have made, and a number of other matters.
Relevantly, I have found that there were no outward signs of distress of a level which caused concern to Mr McCristal or Mr Hutchinson, an experienced solicitor and barrister respectively, on 27 October 2008 when a settlement offer was made. I have not been persuaded that Ms Rossi spoke in gibberish or could not be understood, a matter upon which Dr Parmegiani placed considerable weight. That is not to say there were no signs of emotion. Mr Hutchison said she was upset, but put it no higher than that. Nor were there outward signs of distress of a level which caused concern to an experienced solicitor and barrister on 29 October 2008 about Ms Rossi's understanding of the nature and effect of the terms of the settlement. Again, that is not to say there were no signs of emotion. Mr Hutchinson was able to say that Ms Rossi was disappointed.
Although Dr Parmegiani proceeded on the basis that Ms Rossi did not have the confidence to put forward her views on 29 October 2008, I have found that she was able to ask questions, pointed out a number of difficulties with the terms of the documents, recalled specific matters such as reference to a serious injury certificate and Medicare liabilities, and made it clear to Mr Hutchinson that she had different views about her case. I cannot properly infer in those circumstances that Ms Rossi was restricted in putting forward her views.
As to information discussed at the settlement, Mr Hutchison had told Ms Rossi she did not have a strong case. Mr McCristal read the various documents to Ms Rossi at the conference, and they were not particularly lengthy. The Deed expressly referred to the release provided by Ms Rossi extending to a release of all claims, actions, suits, costs or demand at law, in equity or under statute arising out of or relating to the course of Ms Rossi's employment at Qantas.
I have accepted that Mr McCristal also explained to Ms Rossi the mechanism by which the settlement was to work.
I have not found that there was conduct on the part of Mr McCristal or Mr Hutchinson that might constitute 'duress' or undue pressure to sign. The absence of objective evidence to support any such inference does not mean that Ms Rossi did not feel that she was under duress, but it sheds some light on the reliability of and credibility of that evidence. I have found that Ms Rossi's evidence as to events at the settlement conference was unreliable in part.
All of these matters have an effect on the weight I can properly accord to Dr Parmegiani's opinion, because he accepted and took into account what was reported to him by Ms Rossi about the settlement conference in 2008 in forming his opinion in 2020. In particular, his assumptions and acceptance of Ms Rossi's descriptions of her feelings and events (including speaking gibberish) formed the basis for his purported opinions as to her subjective state of mind at particular times, as did in large part his examination of her. Dr Parmegiani's opinions as to her subjective state of mind must be treated with considerable circumspection. I give those opinions no real weight.
Dr Parmegiani accepted that his examination of Ms Rossi was instrumental to his opinions, and that he assumed that her current mental state was reflective of her mental state in 2008. Other than referring to a consistent diagnosis over time, it was unclear why it was appropriate to assume that her symptoms, manner and emotional response to circumstances would be consistent and not fluctuate at any time. Furthermore, there was evidence of deterioration in Ms Rossi's mental state since 2008. Ms Allan suggested this (see [338] above). Ms Rossi also said in her October 2020 affidavit that she had 'ruminating thoughts, reliving distressing memories of the traumatic events I was subject to at both Qantas and Maurice Blackburn', suggesting that the experience in 2008 with Maurice Blackburn had added to her distress.
Regardless of those issues, I accept that Dr Parmegiani was qualified to say that in his opinion Ms Rossi suffered a major depressive disorder and that someone with her symptoms was or was not likely to be able to understand transactions of the nature of the Deed if explained to them. And indeed, whilst the iterations of his reports, following further questions from Ms Rossi's lawyers, tended to descend into a dissection of the purport of the transaction in a manner not contemplated in Gibbons v Wright or Hanna v Raoul, under cross examination Dr Parmegiani accepted that in general terms Ms Rossi was able to understand the general nature and effect of the Deed; and that she was generally able to understand any advice given by her lawyers regarding the nature of the Deed and its purpose, including its possible consequences and especially the risks in terms of legal costs. He accepted under cross examination that his opinion as contained in his first report had not been changed by his later reports. His opinion remained that Ms Rossi did have the capacity to understand the Deed.
Dr Lee
Dr Lee provided a report dated 25 November 2020. He was also provided with material including Ms Rossi's affidavits, Dr Singleton's records and reports, Ms Allan's report and affidavit, Dr Gill's reports and Dr Parmegiani's first three reports.
Dr Lee was asked to answer the following questions:
(a)What is the specialised knowledge based on your training, study or experience that you have which allows you to opine upon the issue of whether a person has mental capacity to engage in certain conduct or to understand certain matters?
(b)Based on your expertise, how is the issue of whether a person has mental capacity to engage in certain conduct or to understand certain matters assessed, determined or otherwise ascertained from a medical perspective?
(c)Based on your expertise, and on the material available to you, are you able to give an opinion as to whether Ms Rossi was able to understand the effect, or the general nature, of the Deed at the time of entering into the Deed if its effect, or general nature, had been explained to her?
(d)If so, based on your expertise, and on the material available to you, was Ms Rossi able to understand the effect, or general nature, of the Deed at the time of entering into the Deed if its effect, or general nature, had been explained to her?
Before addressing the report in more detail I wish to briefly dispel one of the objections raised by Ms Rossi, which to my mind was one of form over substance. It is true, as counsel submitted, that Dr Lee did not use paragraph numbering and that his style of writing involved setting out a statement (usually an extract of evidence) and then commenting upon it, rather than strictly following the format suggested by GPN-EXPT. I did not find that style inappropriate or such as to diminish the weight that should be afforded to it. With careful reading, and reading the report as a whole, I had no difficulty in understanding the nature and content of Dr Lee's report, and in substance it addressed the matters required by GPN-EXPT.
Dr Lee stated that from a medical perspective, mental capacity is best assessed and determined at the time of the relevant event. He observed that it can otherwise be determined by the review of contemporaneous records, acknowledging that such data may be less direct and subject to confirmation bias and interpretation. Dr Lee did not consider it useful to reconstruct Ms Ross's capacity on 29 October 2008 from her present day recall (2020) 'as memory is reconstructive, frequently inaccurate and subject to retrospective/hindsight bias'. For this reason he did not consider there was value in meeting with and assessing Ms Rossi at the time of preparing his report.
Dr Lee said that a psychiatric diagnosis such as major depression does not necessarily indicate that a person lacked capacity to understand certain matters at the time they engaged in conduct. Additional information would ordinarily be required. Impairments and disabilities vary widely within each diagnostic category. An adequate assessment would require consideration of history, symptoms that may interfere with cognition and a mental state examination that took account of general attributes such as intellect and personality, speech form, cognition (concentration, orientation, short term memory), affect and mood (objective presentation and insight). Both corroborative and non-corroborative data about symptoms and impairment may be relevant, and psychometric testing may also assist.
Clearly in this case no such assessment was undertaken at the relevant time. Dr Lee took the approach that based on his expertise he was able to give a qualified opinion, limited in that he did not assess her on 29 October 2008, and noting that some of the documents provided to him may be affected by bias over time. He proceeded on the basis (as instructed) of assuming the correctness of Ms Rossi's affidavits, but not the correctness or conclusiveness of her assertions as to capacity to understand the effect or general nature of the Deed.
Dr Lee reviewed the materials before him, commenting to the following effect (and I note that some of these matters are drawn from Qantas' closing submissions, but I consider they fairly reflect Dr Lee's report):
(a)Ms Rossi's references to inaccuracies that she perceived in the medical reports of Dr Gill 27 October 2008 is indicative of cognitive capacity and judgement;
(b)Ms Rossi's ability to recall significant details, and the fact that her complaints relate mostly to a lack of explanation and not being listened to, are matters which suggest that she most likely did have capacity to understand;
(c)Ms Rossi indicated that she understood issues as demonstrated by her assertion that what her lawyers were doing to her was not right, and she registered and was able to articulate consequences of not signing the Deed as relayed to her by Mr McCristal during the phone call of 27 October 2008;
(d)Ms Rossi was able to recall that what Mr McCristal was saying to her about not being able to prove negligence, and that a serious injury certificate for pain and suffering was inconsistent with what he had previously advised her, and reasoned that the inconsistency was confusing;
(e)her statement 'This is not right' suggests that she understood the implications of signing the Deed, but signed under protest;
(f)her statement that she was consumed by the consequences if she did not sign indicates she had the capacity of understanding the consequences of not signing;
(g)while she asserted that she was upset, overwhelmed and could not understand or rationally consider anything that was being said or how this could be happening, her preceding statements indicate that she was registering what was happening, recognised errors and inconsistencies, and attempted to express disagreement, which do not support her contention that she was not in her right mind and could not rationalise anything that was being said;
(h)her distress in the period leading up to the signing of the Deed as recorded in Dr Singleton's notes for 24 September 2008 suggests a process of reasoning where she became distressed as she realised that her medical notes did not support her case, and indicates cognitive capacity despite distress; and
(i)Dr Singleton's notes of 28 October 2008 demonstrate capacity to understand and explain why Ms Rossi considered the settlement sum to be pitiful.
Dr Lee also observed in his report that if Ms Rossi had been 'overwhelmed', one would not expect her to be able to register and record as much detail as is provided. He said that he considered that the presence of depression does not necessarily cause cognitive problems to the extent that she would have lacked capacity, and the impression he derived from her affidavits was of someone who did not lack confidence in confronting her lawyers with her view of her situation.
Dr Lee concluded that from his review of her records, and her affidavits, she appeared to have been able to consider matters put to her, as for example, she understood that her pre-injury records were deleterious to her case, but had difficulty accepting their consequences.
Dr Lee's said that the preponderance of Ms Rossi's statements indicate that 'on the balance of probabilities' Ms Rossi understood that adverse consequences of her previous psychiatric records on her claim with Qantas, and registered that if she did not sign the Deed there would be adverse consequences, likely demonstrating capacity. He concluded by stating that in his opinion, on the balance of probabilities, Ms Rossi had mental capacity to understand the effects or general nature of the Deed at the time of entering into it if its effect or general nature had been explained to her.
Under cross examination Dr Lee acknowledged that there had been a longstanding diagnosis of a major depressive disorder, and that her capacity was said to be impaired by the fact of that disorder. In response to questions about whether anxiety can impact cognition, he was guarded, in that he considered people who have anxiety do not necessarily have impaired cognition -some degree of anxiety can improve cognition - but he accepted that there may be some cognitive dysfunction with extremely severe anxiety, acknowledging the importance of context. He also accepted that types of depression can fluctuate according to the situation.
Ms Rossi filed an eleven page submission objecting to the entirety of Dr Lee's report, challenging the nature of the questions, and alleging an absence of reasoning or disclosure of the facts relied upon. A schedule was included with particular objections relating to 37 paragraphs. It is apparent that considerable work was undertaken to prepare this document, but I do not consider it necessary or productive to address each of the objections. In Matthews v SPI Electrical (Ruling No 38) [2014] VSC 102 Forrest J commented on the unproductive nature of a microscopic examination:
[33]… in its written submissions, SPI has undertaken an excruciatingly detailed analysis of Dr Hastings' reports and identified a large number of passages that it says should not be admitted. Ultimately, I think this analysis is distracting and unhelpful. For a court to undertake the same task, and then to undertake the correlative task of determining whether those statements can be unbound, is unthinkable - at this stage of a trial of this size or, indeed, in any trial. Rather, the exercise that I suggest would apply in most cases is this: examine the report as a whole and determine whether the reader can sensibly distinguish between assumed facts and the expression of opinion based on the witness' expertise.

I will follow this approach with respect to Dr Lee's report.
It is apparent that the questions asked of Dr Lee were formulated having regard to Gibbons v Wright and accord with the approach adopted in Hanna v Raoul and A v N discussed above.
Read as a whole, I have no difficulty in concluding that the report is admissible.
Dr Lee identifies matters relevant to an assessment from a psychiatric perspective. He explains why it is appropriate (where possible) to assess capacity at the relevant time. He explains that as he was unable to do that, his opinion is qualified. Dr Lee sets out his views regarding the assessment of capacity, followed by his analyses of the material provided to him which he has considered relevant, and explains what he draws from those materials for the purpose of forming his opinion. In my view Dr Lee has identified the assumed facts and explained how his opinion results from an application of his experience.
I accept the submission that on occasion Dr Lee tended towards legal conclusion (by reference to a legal authority and by use of the expression 'on balance of probabilities'), but that does not colour his report from my perspective. I have ignored the reference to the authority, and take his use of the expression 'on balance of probabilities' to mean no more than reflecting that he considered it likely, or more probable than not, that Ms Rossi had the mental capacity to understand the effects or general nature of the Deed at the time of entering into it, if its effect or general nature had been explained to her.
PART H - CONCLUSION
As I said at the start, the question of capacity in this case has not been an easy one. I accept, having regard to the medical evidence and the observations of Ms Allan, that as at 29 October 2008, Ms Rossi had a major depressive disorder, but that does not answer the question.
In the end, the focus must be on the application of the appropriate test for capacity having regard to the principles. It is to be recalled that in Gibbons v Wright the High Court addressed the question of capacity by asking whether the sisters concerned had been capable of understanding at least the general purport of the relevant instrument 'if the matter had been explained to them' (at 438). That explanation would be sufficient if it enables the person to understand the general purport of the transaction: Hanna v Raoul at [54], [161].
Having regard to the instrument in this case and the nature of a compromise, I have proceeded on the basis that it is sufficient that Ms Rossi had capacity to understand something of her prospects of success, that any claims against Qantas would be resolved and come to an end if a settlement was achieved, that there would be no necessity for a trial, and that she would be paid the relevant sums had such an explanation been given to her (see [71] above). The terms of the Deed were not unduly complex.
Some of the evidence and submissions as to alleged duress by Mr McCristal and Mr Hutchinson and the complaints about Mr McCristal's conduct and advice had the tendency to divert attention from that central test.
It is not necessary to descend into an analysis of whether Ms Rossi had the capacity to understand each and every term of the Deed, the basis for the conflicting medical reports or the range of all possible alternative settlements or pathways forward. To do so imposes too high a standard of what is required for the purpose of determining capacity. To do so does not answer the question of whether Ms Rossi had the capacity to understand the broad operation or general purport of the compromise reflected by the Deed.
The fact that the settlement was objectively a good one is not a persuasive factor. A person with capacity is entitled to accept or reject a good offer. The rejection of a good offer might have some relevance in assessing capacity in a particular case, but it is not to the point in this case.
Ms Rossi understood from 9 October 2008 and throughout the period 27 to 29 October 2008 that the purpose of the settlement meeting was to try to mediate and settle her dispute with Qantas prior to trial. It had no other purpose. She had previously been involved in an unsuccessful conciliation. She had made clear to Ms Allan and Dr Singleton that she was attending a mediation or settlement conference.
I have had regard to Ms Rossi's evidence about the events on 27 October 2008, together with that of Mr McCristal and Mr Hutchinson, as the only observers who gave evidence. I have taken into account Ms Rossi's evidence about her state of mind at the time. I have no difficulty accepting that she felt upset and anxious, and angry because, as events had played out, her prospects of success had diminished with the disclosure to Dr Gill about her earlier psychiatric history. However, I am not satisfied that her state of mind was such that she was or felt paralysed, overwhelmed or in a black hole (words I understand from her evidence to mean that she could not follow what was happening or speak up), or otherwise was unable to comprehend what was happening as events unfolded on that day.
Ms Rossi was sufficiently engaged on 27 October 2009 to identify the absence of references to Ms Buchanan's notes in the medical reports, identify that Dr Gill had revised his opinion as to the level of her impairment caused by her work (including specific percentages) and understand why those figures had changed. She understood that she had received an initial settlement offer of $50,000. She knew she had to come back to the mediation on 29 October 2008. She knew there was an offer that she had to consider. Whatever state of anxiety or distress she was in, she was able to report precise information about Dr Gill's report, the offer and the absence of Ms Buchanan's notes to Ms Allan that evening.
On 28 October 2008 Ms Rossi understood enough about the proposed settlement to know and reason that the sum offered was 'pitiful', and a clause was proposed purporting to prevent her from discussing her experiences at Qantas. She was able to report those matters to Dr Singleton. Dr Singleton knew Ms Rossi had received an offer and that there was to be a further discussion the next day. Ms Rossi was able to go to an internet cafe and read Ms Buchanan's notes, and pick up discrepancies in them.
It must have been apparent to each of Ms Allan and Dr Singleton by the end of 28 October 2009 that Ms Rossi may be required to make decisions at the 29 October 2008 settlement meeting. Neither Ms Allan nor Dr Singleton considered by that time whether Ms Rossi's mental capacity might be compromised, despite their communications with her at that time, and despite knowing that she was involved in making a decision about an offer. Although Dr Singleton discussed private hospital admission, it was not on the basis of any immediate admission, but on the basis that she would see what happened at the meeting on 29 October 2008. I do not suggest that the conduct of Ms Allan or Dr Singleton is decisive. That they did not consider or identify an issue of capacity does not establish that Ms Rossi had capacity. It does, however, suggest that whatever symptoms Ms Rossi was displaying and discussing with two professional persons used to dealing with mental health issues were not such as to raise alarm bells about Ms Rossi's decision making capacity at the pending reconvened settlement conference.
Ms Rossi attended the conference on 29 October 2008 armed with the knowledge that I have already described.
Ms Rossi was again upset and anxious at the meeting of 29 October 2008. Part of her sense of distress was fuelled by her perception that she was being blamed for misleading Dr Gill. She was unable to persuade her legal advisers about her view as to prospects, and there remained a difference between their respective views. Ms Rossi had a different view of her prospects of success but was on notice of the costs risk if she proceeded and did not succeed. The Your Claim letter, which referred to difficulties in her claim, was read to her. She understood that the offer was increased from $50,000 to $75,000. The Terms of Settlement and the Deed were read to her. She discerned the contradiction in terms between the Your Claim letter and the Deed. I accept that Mr McCristal also explained the Deed to her. As to the reading of the Deed and the explanation, the release was expressly a release of all claims she might have against Qantas. I infer Mr McCristal must have referred to it, as it was read out. I again take into account that the mechanism by which the settlement was to be effected was not complex. On Ms Rossi's case, she recalls precisely the manner in which documents were held by Mr McCristal and not passed to her. She recalls that she expressed some emotion. She noted with Mr McCristal the restriction on being able to talk about the settlement with her family. She took into account the costs consequences if she did not sign. I also accept that the settlement conference was an environment where Rossi felt under some pressure, being a situation where an offer was being discussed and a decision was expected, whether it be acceptance or rejection of the offer. Such is the nature of a mediation, settlement or conciliation conference.
However, there was no outward manifestation to Mr McCristal or Mr Hutchinson at the settlement conferences that Ms Rossi had a difficulty with communicating or with dealing with or understanding the compromise. Mr McCristal's and Mr Hutchinson's evidence was to the effect that nothing had occurred at the settlement meeting that caused them to form the belief that Ms Rossi was not competent, did not provide instructions, did not understand the transaction or did not have the capacity to enter into the Deed. They were both present when she signed the Deed. I am unable to reject their evidence. To do so would be to infer that they held concerns but were prepared to proceed regardless or that they were insufficiently focussed to notice any issues. There is insufficient evidentiary basis to draw either inference.
I place significant weight on Ms Rossi's level of engagement in the settlement process. The matters to which I have referred indicate an understanding of the implications of signing the Deed, that she could reason about inconsistencies, that she was able to indicate disagreement, that she was registering what was happening at the meeting, and that even in circumstances where she felt distress, anxiety and a degree of pressure, she was able to do those things. Despite Ms Rossi's contention that she was pressured by a short time frame, the matters I have referred to played out within the time frame of the meeting, and as I have said, the settlement transaction itself was not complex.
I do not accept Ms Rossi' submission that the fact that she asked questions on 29 October 2009 about the terms was indicative of a lack of capacity. Rather, it disclosed reasoning and inquiry.
Nor has Ms Rossi persuaded me, having regard to the burden of proof, that despite her general engagement in the process to which I have referred at the 29 October 2008 meeting, at the precise time that she signed the Deed she was in a different state; a state where she perceived that she was under duress, that such perception denied her capacity, that she was unable to think properly and was robbed of autonomy with respect to the Deed. Ms Rossi placed considerable store by analogy on the decision in Murphy v Doman as an example where changes in capacity might be observed within the space of a number of days. So much can be accepted. Potentially, depending on the diagnosis, I presume there may be fluctuations in capacity even within the one day. However, Ms Rossi has not persuaded me that her capacity markedly diminished in the limited period between the discussions with Mr McCristal and Mr Hutchinson and the time she signed the Deed. Where, as I have indicated, I have issues as to the reliability of Ms Rossi's evidence about her subjective state of mind, meeting the burden of proving such a change in capacity in a small window of time would not in any event be easy, absent observers who might provide corroborative evidence in support. However, there were no external signs of such a dramatic change, having regard to the evidence of Mr McCristal and Mr Hutchinson.
I am not satisfied that Ms Rossi has discharged the onus of proving on the balance of probabilities that she lacked the mental competence on 29 October 2009 to understand, if the transactions contemplated under the Deed had been sufficiently explained to her, what was provided for under that Deed and to enter into it. She has not established on the balance of probabilities that she was not capable of understanding that there were issues relating to the prospects of her claim, that by executing the Deed her claims against Qantas would be resolved and come to an end, that there would be no necessity for a trial, and that she would be paid the relevant sums.
Further, even if, contrary to the approach in Gibbons v Wright as discussed in Hanna v Raoul and Hobhouse v Macarthur-Onslow and applied in A v N, the question is to be framed as whether Ms Rossi had the capacity to understand the Deed taking into account the explanation she in fact received from Mr McCristal and Mr Hutchinson, I am not satisfied that Ms Rossi lacked the requisite mental capacity. I am not persuaded that the explanation they gave was insufficient in the circumstances.
The expert evidence does not persuade me to form a different view. Rather, it tends to support my conclusion. Dr Parmegiani's opinion was premised on a number of circumstances pertaining to the conduct of the settlement conferences that were not established. Further, it was premised on Ms Rossi's mental state being consistent in 2008 and 2020, a conclusion which is undermined by evidence of deterioration in Ms Rossi's mental health, albeit that such evidence was relatively limited. Regardless, Dr Parmegiani confirmed under cross examination that he considered Ms Rossi would have been capable of understanding the nature and effect of the Deed if she were given a sufficient explanation of it.
I found the evidence of Dr Lee to be of more assistance, because it focussed on the contemporaneous evidence. Whilst his opinion was qualified as a result, his process of identifying examples of reasoning and analysis from the evidence before him was helpful, and supports the conclusion I have reached.
Because Dr Singleton was the only medical professional who treated Ms Rossi at the time who gave evidence, I have given careful consideration to her evidence. Her evidence certainly paints a picture of Ms Rossi being highly emotional both on the evening of 28 October 2008 and after the settlement conference of 29 October 2008. Dr Singleton had concerns generally about her wellbeing and mental health. However, as Dr Singleton conceded, she would defer to the opinions of psychiatrists and she did not focus on or assess mental capacity as at 27‑29 October 2008. Her concerns as to capacity arose later when she was given additional information by Ms Rossi. Whilst it is important to note that Dr Singleton's consultation notes record Ms Rossi's distress at the time, they also contain details that reveal the capacity to analyse and recall details about the settlement. And in any event, Dr Singleton opined only that Ms Rossi's capacity was 'impaired'. I prefer the evidence of Dr Parmegiani and Dr Lee. I am not satisfied that any impairment was such as to deprive Ms Rossi of the requisite capacity.
Orders
There will be an order refusing the relief sought in this proceeding.
The parties sought to be heard on costs following judgment. It would also seem that the underlying application for leave to proceed against Qantas under the Australian Human Rights Commission Act should be dismissed. I will hear any submissions as to these matters at a time convenient to the parties and the Court.

I certify that the preceding four hundred and seventeen (417) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Banks-Smith.
Associate:
Dated: 28 August 2023

File number:	NSD 1549 of 2019
Judgment of:	BANKS-SMITH J
Date of judgment:	28 August 2023
Catchwords:	CAPACITY - compromise of litigation by deed - personal autonomy - where applicant asserts incapacity and seeks to have deed declared void - where applicant bears onus of establishing was handicapped person within prescribed definition - issue and context specific assessment of capacity - events occurred in 2008 - use of lay and expert evidence in retrospective assessment - whether onus satisfied
Legislation:	Evidence Act 1995 (Cth) ss 60, 136, 140 Federal Court Rules 2011 (Cth) r 23.13 Accident Compensation Act1985 (Vic) s 103 County Court Act 1958 (Vic) s 78 County Court Rules of Procedure in Civil Proceedings 1999 (Vic) O 15
Cases cited:	A v N [2012] NSWSC 354 Australian Securities and Investments Commission v Mitchell (No 2) [2020] FCA 1098 Banks v Goodfellow (1870) LR 5 QB 549 Briginshaw v Briginshaw (1938) 60 CLR 336 Bull v Fulton (1942) 66 CLR 295 Croft v Sanders [2019] NSWCA 303 Dalle-Molle v Manos [2004] SASC 102; (2004) 88 SASR 193 Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 Drivas v Jakopovic [2019] NSWCA 218; (2019) 100 NSWLR 505 Flageul v WeDrive Pty Ltd [2020] FCA 1666 Gibbons v Wright (1954) 91 CLR 423 Goddard Elliott (A Firm) v Fritsch [2012] VSC 87 Guthrie v Spence [2009] NSWCA 369; (2009) 78 NSWLR 225 Hanna v Raoul [2018] NSWCA 201 Herron v HarperCollins Publishers Australia Pty Ltd [2022] FCAFC 68; (2022) 292 FCR 336 Hobhouse v Macarthur-Onslow [2016] NSWSC 1831 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 Masterman-Lister v Brutton & Co [2003] 1 WLR 1511 Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 5) [2015] FCA 571 Matthews v SPI Electrical (Ruling No 38) [2014] VSC 102 Murphy v Doman [2003] NSWCA 249; (2003) 58 NSWLR 51 Papakosmas v The Queen (1999) 196 CLR 297 R v Kucma [2005] VSCA 58; (2005) 11 VR 472 Re Erdogan's Application; Erdogan v Ekici [2012] VSC 256; (2012) 36 VR 579 Re Griffith (decd); Easter v Griffith(1995) 217 ALR 284 Rossi v Qantas Airways Limited (No 2) [2020] FCA 1080 Scott v Scott [2012] NSWSC 1541 Secretary, Department of Health v Southern Cross Directories Pty Ltd [2021] FCA 1592 Setka v Gregor (No 2) [2011] FCAFC 90; (2011) 195 FCR 203 Slaveski v State of Victoria [2009] VSC 596; (2009) 25 VR 160 Starr v Miller [2021] NSWSC 426 Starr v Miller [2022] NSWCA 46 TJ (on behalf of the Yindjibarndi People) v Western Australia (No 3) [2015] FCA 1359 Treasury Wine Estates Vinters Limited v Pearson [2019] FCAFC 21; (2019) 268 FCR 12 Vishniakov v Lay [2019] VSC 403; (2019) 58 VR 375 Zorbas v Sidiropoulous(No 2) [2009] NSWCA 197
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	417
Date of hearing:	9-12 August 2021, 8 November 2021 and 16 February 2022
Counsel for the Applicant:	Ms K Edwards with Ms A Costin
Solicitor for the Applicant:	Harmers Workplace Lawyers
Counsel for the Respondent:	Ms E Raper SC with Mr A Smorchevsky
Solicitor for the Respondent:	Ashurst Australia

NSD 1549 of 2019
BETWEEN:	SARA ROSSI Applicant
AND:	QANTAS AIRWAYS LIMITED Respondent
ORDER MADE BY:	BANKS-SMITH J
DATE OF ORDER:	28 AUGUST 2023

PART A - PRELIMINARY	[1]
Introduction	[1]
Amended originating application	[11]
Statutory framework	[12]
Brief chronology	[18]
PART B - PRINCIPLES	[38]
Preliminary - some examples	[38]
Principles - standard of mental capacity	[53]
Role of expert and lay evidence	[66]
PART C - INTRODUCTION TO ISSUES AND WITNESSES	[68]
Summary of respective cases	[68]
The approach to capacity	[70]
The witnesses	[75]
Conduct of trial	[84]
PART D - EVENTS	[85]
Formal claims against Qantas culminating in writ	[86]
MBC engaged to act	[94]
Psychiatric assessments	[103]
Change in the psychiatric assessments	[107]
Other events prior to the settlement conference	[126]
*Letter informing Ms Rossi about the settlement conference*	[126]
*Ms Rossi's attempts to contact Mr McCristal*	[128]
*Appointment with Ms Allan 21 October 2008*	[131]
*Appointment with Dr Singleton 22 October 2008*	[132]
27 October 2008 pre-conference meeting (Monday)	[133]
27 October 2008 settlement conference at Sparke Helmore	[146]
After the conference and leaving the building	[162]
28 October 2008 (Tuesday)	[167]
29 October 2008 settlement meeting continued (Wednesday)	[174]
After the conclusion of the settlement meeting	[198]
Ms Rossi's diary notes	[207]
The Deed	[209]
PART E - EVALUATING CERTAIN EVIDENCE	[216]
Ms Rossi	[216]
Mr McCristal	[223]
Mr Hutchinson	[231]
Ms Firth's affidavit	[232]
Limitation rulings	[233]
PART F - FINDINGS ABOUT EVENTS	[237]
Standard of proof	[237]
Certain findings	[239]
PART G - THE EXPERT EVIDENCE	[293]
Principles	[293]
Dr Singleton	[298]
*Dr Singleton's lay and expert evidence*	[302]
*Evaluation of Dr Singleton's evidence*	[312]
Ms Allan	[318]
*Ms Allan's lay evidence*	[323]
*Ms Allan's expert evidence*	[342]
Dr Parmegiani	[356]
Dr Lee	[377]
PART H - CONCLUSION	[394]
Orders	[416]