FEDERAL COURT OF AUSTRALIA
Rossi v Qantas Airways Ltd [2024] FCAFC 144
Appeal from: Rossi v Qantas Airways Ltd(No 4) [2023] FCA 1008 File number: NSD 1080 of 2023 Judgment of: SNADEN, HATCHER AND HORAN JJ Date of judgment: 13 November 2024 Catchwords: CONTRACTS – appeal from primary judgment refusing relief sought – capacity – deed of settlement – apparent settlement of “all claims” arising from appellant’s employment – initial workers’ compensation claim – application for deed of settlement to be set aside by reason of being a “handicapped person” at time of settlement – whether appellant incapable by reason of mental infirmity of managing her affairs in relation to the proceeding – consideration of authorities relating to capacity to contract at general law – authorities also relevant to statutory definition of “handicapped person” – whether appellant able to understand effect or general nature of deed of settlement if it had been explained to her – primary judge applied correct test
EVIDENCE – admissibility of expert medical evidence
Legislation: Australian Human Rights Commission Act 1986 (Cth)
Evidence Act 1995 (Cth) ss 66A, 79, 136
Federal Court Rules 2011 (Cth) rr 23.13(e), 23.13(f)
County Court Act 1958 (Vic) s 78
County Court Rules of Procedure in Civil Proceedings 1999 (Vic)
Cases cited: Aldi Foods Pty Ltd v Moroccanoil Israel Ltd (2018) 261 FCR 301; [2018] FCAFC 93
Australian Competition and Consumer Commission (ACCC) v Australia and New Zealand Banking Group Ltd (2015) 236 FCR 78; [2015] FCAFC 103
Dalle-Molle v Manos (2004) 88 SASR 193; [2004] SASC 102
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21
Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17; [2004] FCAFC 189
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Gibbons v Wright (1954) 91 CLR 423
Goddard Elliott (a firm) v Fritsch [2012] VSC 87
Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369
Hanna v Raoul [2018] NSWCA 201
Kanjian Holdings No 1 Pty Ltd v Kanjian [2021] NSWSC 839
Masterman-Lister v Brutton & Co [2003] 3 All ER 162; [2003] 1 WLR 1511; [2002] EWCA Civ 1889
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Moore (a pseudonym) v The King [2024] HCA 30
Owners of Strata Plan No 23007 v Cross [2006] FCA 900
R v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40
Rappard v Williams [2013] NSWSC 1279
Re Erdogan’s Application: Erdogan v Ekici (2012) 36 VR 579; [2012] VSC 256
Rossi v Qantas Airways Limited (No 2) [2020] FCA 1080
Rossi v Qantas Airways Limited (No 4) [2023] FCA 1008
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 106 Date of hearing:
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Details
- Case
- [2024] FCAFC 144
- Decision Date
CaseChat Overview and Summary
In the appeal of Rossi v Qantas Airways Ltd, the central dispute revolves around the capacity of Ms Rossi to enter into a Deed of Settlement with Qantas Airways Ltd, and her subsequent attempt to have the deed set aside on the grounds of her mental infirmity at the time of signing. The case was heard in the Federal Court of Australia, which had to determine whether Ms Rossi, who suffers from a chronic depressive disorder, had the mental capacity to understand the effect or general nature of the Deed of Settlement when it was signed.
The primary legal issue before the court was whether Ms Rossi had the requisite mental capacity to enter into the Deed of Settlement, considering her psychiatric condition at the time. This required the court to apply the general law principles concerning capacity to contract, and also to interpret the statutory definition of a "handicapped person" in the context of the Deed. The court needed to ascertain if Ms Rossi could understand the implications of the Deed if it had been explained to her, a determination that hinged on the admissibility and weight of expert medical evidence.
The court found that Ms Rossi did possess the capacity to understand the nature and effect of the Deed if it had been explained to her, based on the evidence provided by expert witnesses. The court held that the primary judge correctly applied the relevant legal tests and admitted the expert evidence properly. It was determined that the expert evidence, which included assessments of Ms Rossi's mental state by psychiatrists, was admissible under the Evidence Act and met the criteria for expert opinion. The court thus concluded that the primary judge had applied the correct test in determining Ms Rossi's capacity to contract.
Consequently, the appeal was dismissed, and the original judgment refusing Ms Rossi's application to set aside the Deed of Settlement was upheld. The court ordered that Ms Rossi pay the costs of the appeal.
The primary legal issue before the court was whether Ms Rossi had the requisite mental capacity to enter into the Deed of Settlement, considering her psychiatric condition at the time. This required the court to apply the general law principles concerning capacity to contract, and also to interpret the statutory definition of a "handicapped person" in the context of the Deed. The court needed to ascertain if Ms Rossi could understand the implications of the Deed if it had been explained to her, a determination that hinged on the admissibility and weight of expert medical evidence.
The court found that Ms Rossi did possess the capacity to understand the nature and effect of the Deed if it had been explained to her, based on the evidence provided by expert witnesses. The court held that the primary judge correctly applied the relevant legal tests and admitted the expert evidence properly. It was determined that the expert evidence, which included assessments of Ms Rossi's mental state by psychiatrists, was admissible under the Evidence Act and met the criteria for expert opinion. The court thus concluded that the primary judge had applied the correct test in determining Ms Rossi's capacity to contract.
Consequently, the appeal was dismissed, and the original judgment refusing Ms Rossi's application to set aside the Deed of Settlement was upheld. The court ordered that Ms Rossi pay the costs of the appeal.
Orders
Orders of the court
1. The appeal is dismissed.
2. The appellant is to pay the respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
By her amended notice of appeal dated 7 June 2024, Ms Rossi appeals the 28 August 2023 judgment and the further orders made on 5 September 2023. For the reasons which follow, the appeal must be dismissed.B. FACTUAL BACKGROUND The facts of this matter are comprehensively set out in the primary judgment. For present purposes they may be summarised uncontroversially as follows. Ms Rossi was employed as a long-haul flight attendant by Qantas from 1988 until 2003. Her employment terminated in 2003 when she applied, and was accepted, for voluntary redundancy. In August 2006, Ms Rossi filed a worker’s claim form under the Accident Compensation Act 1985 (Vic) alleging that she had suffered a workplace injury during her employment with Qantas in the period 2001-2003. Qantas (as a self-insurer) rejected the claim in September 2006. From about April or May 2007, Ms Rossi was in contact with a regional franchisee firm of Maurice Blackburn Cashman (MBC) operated by Mr John McCristal. Mr McCristal acted for Ms Rossi in respect of her claim on a “no win, no fee” basis from September 2007. On 19 October 2007, Ms Rossi instituted proceedings against Qantas in the County Court in which she claimed weekly compensation from 1 July 2003 together with medical and other expenses. In its defence, Qantas denied liability on the basis that Ms Rossi’s injury did not arise out of the course of her employment nor was it a significant contributing factor. The matter was subsequently listed for hearing in November 2008. Mr McCristal arranged for Ms Rossi to attend an assessment with Dr John Gill, a psychiatrist. Dr Gill subsequently produced a report dated 27 November 2007 in which he diagnosed Ms Rossi as suffering from chronic adjustment disorder with mixed anxiety and depressed mood and concluded that this psychiatric injury had been caused by her employment with Qantas. He considered at that point that she had no present capacity for work and that any future capacity was unlikely. Ms Rossi was also assessed by a psychiatrist, Dr Ian Jackson, in early 2008 on behalf of Qantas. Dr Jackson concluded that the most appropriate diagnosis of her condition was that of a major depressive disorder with associated anxiety and specific phobias. Dr Gill assessed Ms Rossi again in September 2008. On this occasion, Dr Gill had the benefit of further information about the history of her medical condition, including medical records indicating that Ms Rossi’s depressive illness long predated the employment events previously said to have caused it and that she had been the subject of prior extensive medical treatment for the condition. As a result, in a further report dated 15 September 2008, Dr Gill altered his opinion as to the causation of Ms Rossi’s condition. He now concluded that the work-related contribution to her condition was “a relatively minor factor in causation of her depressive illness” compared to pre-existing factors identified in his report. He estimated that Ms Rossi had a work-related psychiatric impairment of 5% and a 12% level of impairment attributable to work-related stress injury. In a supplementary report dated 10 October 2008, Dr Gill repeated the estimate of 5% impairment attributable to work-related causal factors, and estimated a psychiatric impairment of 35% impairment attributable to non-work-related factors.
Evidence
Evidence Before The Court
By ground 5, the appellant contends that the primary judge erred in admitting the expert report of Dr Lee. The primary basis of this ground is that the report did not comply with s 79 of the Evidence Act 1995 (Cth) (Evidence Act) in that:(1)the report did not identify how his findings were made based on his training, study or experience;(2)the report did not identify the facts and matters that he relied upon;(3)Dr Lee’s opinions were open to a reading that indicated his personal view of Ms Rossi;(4)the report included assumptions not properly made; and (5)Dr Lee expressed his interpretation of facts that he was asked to assume were correct, rather than providing an expert opinion on such facts. The appellant also contends that Dr Lee’s report did not comply with r 23.13(1)(e)-(f) of the Federal Court Rules 2011 (Cth) or the Federal Court Expert Evidence Practice Note, and that the format of the report and its presentation were confusing and its reasoning process was opaque. In the above respects, the appellant repeats and relies upon submissions that were advanced below in objection to the admission of the report. The primary judge dealt with the objection, and gave reasons for its rejection, at [388]-[393]. The appellant’s submissions do not engage with this reasoning but, in effect, simply invite the question of the admissibility of Dr Lee’s report to be re-decided in the appeal. Insofar as the appellant relies on s 79 of the Evidence Act, it may be accepted that the correctness standard applies to appellate review of a decision concerning the admission of opinion evidence under the section. By application of the reasoning in Moore at [16]-[18] and R v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 at [61], there can only be one correct answer to whether the conditions for the operation of the exception to the opinion rule in s 79 apply, notwithstanding that the provision requires the making of an evaluative judgment. Section 79(1) establishes two criteria for admissibility: first, the witness who gives the evidence must have specialised knowledge based on the person’s training, study or experience, and second, the opinion expressed in evidence by the witness must wholly or substantially be based on that knowledge. But, as stated in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 at [37], the requirements in s 79(1) may be met “quickly and easily” in many if not most cases:That a specialist medical practitioner expressing a diagnostic opinion in his or her relevant field of specialisation is applying “specialised knowledge” based on his or her “training, study or experience”, being an opinion “wholly or substantially based” on that “specialised knowledge”, will require little explicit articulation or amplification once the witness has described his or her qualifications and experience, and has identified the subject matter about which the opinion is proffered. Dr Lee’s report sets out in detail his qualifications and experience as a medical practitioner and forensic psychiatrist and explains why he considers his training, study or experience allows him to give an opinion about whether a person has the medical capacity to engage in certain conduct or to understand certain matters. He identifies in his report that he had been asked whether he was able to give an opinion as to whether Ms Rossi was able to understand the effect or general nature of the Deed at the time of its entry if its effect or general nature had been explained to her and, if so, to give his opinion. Because the opinion expressed by Dr Lee concerned Ms Rossi’s mental capacity, including the effect of her depressive illness on her capacity to enter into the Deed, we have no difficulty in concluding that it was at least substantially based on Dr Lee’s specialised knowledge. Dr Lee’s report was therefore admissible under s 79.
Decision
Reasons for decision
For reasons published in Rossi v Qantas Airways Limited (No 4) [2023] FCA 1008 on 28 August 2023 (primary judgment or PJ), the primary judge dismissed Ms Rossi’s application to set aside the Deed. On 5 September 2023, the primary judge made a further order dismissing Ms Rossi’s originating application and granting liberty to apply with respect to costs. By her amended notice of appeal dated 7 June 2024, Ms Rossi appeals the 28 August 2023 judgment and the further orders made on 5 September 2023. For the reasons which follow, the appeal must be dismissed.B. FACTUAL BACKGROUND The facts of this matter are comprehensively set out in the primary judgment. For present purposes they may be summarised uncontroversially as follows. Ms Rossi was employed as a long-haul flight attendant by Qantas from 1988 until 2003. Her employment terminated in 2003 when she applied, and was accepted, for voluntary redundancy. In August 2006, Ms Rossi filed a worker’s claim form under the Accident Compensation Act 1985 (Vic) alleging that she had suffered a workplace injury during her employment with Qantas in the period 2001-2003. Qantas (as a self-insurer) rejected the claim in September 2006. From about April or May 2007, Ms Rossi was in contact with a regional franchisee firm of Maurice Blackburn Cashman (MBC) operated by Mr John McCristal. Mr McCristal acted for Ms Rossi in respect of her claim on a “no win, no fee” basis from September 2007. On 19 October 2007, Ms Rossi instituted proceedings against Qantas in the County Court in which she claimed weekly compensation from 1 July 2003 together with medical and other expenses. In its defence, Qantas denied liability on the basis that Ms Rossi’s injury did not arise out of the course of her employment nor was it a significant contributing factor. The matter was subsequently listed for hearing in November 2008. Mr McCristal arranged for Ms Rossi to attend an assessment with Dr John Gill, a psychiatrist. Dr Gill subsequently produced a report dated 27 November 2007 in which he diagnosed Ms Rossi as suffering from chronic adjustment disorder with mixed anxiety and depressed mood and concluded that this psychiatric injury had been caused by her employment with Qantas. He considered at that point that she had no present capacity for work and that any future capacity was unlikely. Ms Rossi was also assessed by a psychiatrist, Dr Ian Jackson, in early 2008 on behalf of Qantas. Dr Jackson concluded that the most appropriate diagnosis of her condition was that of a major depressive disorder with associated anxiety and specific phobias. Dr Gill assessed Ms Rossi again in September 2008. On this occasion, Dr Gill had the benefit of further information about the history of her medical condition, including medical records indicating that Ms Rossi’s depressive illness long predated the employment events previously said to have caused it and that she had been the subject of prior extensive medical treatment for the condition. As a result, in a further report dated 15 September 2008, Dr Gill altered his opinion as to the causation of Ms Rossi’s condition. He now concluded that the work-related contribution to her condition was “a relatively minor factor in causation of her depressive illness” compared to pre-existing factors identified in his report. He estimated that Ms Rossi had a work-related psychiatric impairment of 5% and a 12% level of impairment attributable to work-related stress injury. In a supplementary report dated 10 October 2008, Dr Gill repeated the estimate of 5% impairment attributable to work-related causal factors, and estimated a psychiatric impairment of 35% impairment attributable to non-work-related factors.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.