Seidler v University of New South Wales
[2010] FMCA 887
•18 November 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
SEIDLER v UNIVERSITY OF NEW SOUTH WALES & ANOR [2010] FMCA 887
HUMAN RIGHTS – Disability Discrimination – application to set aside a notice of discontinuance – whether discontinuance improperly effected, through fraud, duress, criminal collusion etc – applicant seeking to raise additional claims – request for suppression – discontinuance regularly effected – suppression not in the interests of justice – application dismissed.
Disability Discrimination Act 1992, s.5
Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.46PO
Sex Discrimination Act 1984 (Cth)
Trade Practices Act 1974 (Cth)
Federal Magistrates Court Rules2001 (Cth), rr.13, 16
Evidence Act1995 (Cth), ss. 55, 56, 76, 118, 119, 135
Federal Magistrates Act 1999 (Cth), ss. 13, 61
Federal Court of Australia Act 1976 (Cth), ss. 17, 50
Human Rights (Sexual Conduct) Act 1994 (Cth), s. 4
Australian Human Rights Commission Act 1986 (Cth), s.46POInternational Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976), Art. 17
Applicant A26 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1050
NACU of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (with Corrigendum dated 17 November 2004) [2004] FCA 1444
Applicant NACT of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 316
Christodoulou v Disney Enterprises Inc [2006] FCAFC 183
SZFOZ v Minister for Immigration and Citizenship [2007] FCA 1137
Maddison v Qualtime Association Inc [2010] FMCA 25
SZFOZ v Minister for Immigration & Anor [2007] FMCA 465
SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 6
Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531; (2000) 105 FCR 573
Rispoli v Merck Sharpe & Dohme & Ors [2003] FMCA 160
X & Ors v Australian Prudential Regulatory Authority [2007] HCA 4; (2007) 226 CLR 630; (2007) 232 ALR 421
Computer Interchange Pty Ltd v Microsoft Corporation [1999] FCA 198; (1999) 88 FCR 438
Dye v Commonwealth Securities Limited [2010] FCAFC 115
Dickason v Dickason (1913) 17 CLR 50
John Fairfax Group v Local Court of NSW (1991) 26 NSWLR 131
Paramasivam v University of New South Wales & Ors [2006] NSWSC 1189
Applicant: KATHRYN SEIDLER
First Respondent: UNIVERSITY OF NEW SOUTH WALES
Second Respondent: AUSTRALIAN GRADUATE SCHOOL OF MANAGEMENT
File Number: SYG 398 of 2008
Judgment of: Nicholls FM
Hearing dates: 14, 15, 16 September 2010
Date of Last Submission: 16 September 2010
Delivered at: Sydney
Delivered on: 18 November 2010 REPRESENTATION
The Applicant: In Person
Appearing for the Respondents: Mr J Mattson
Solicitors for the Respondents: Bartier Perry ORDERS
(1)The application in a case of 3 June 2010 is dismissed.
(2)The applications in a case of 10 August 2010 and 30 August 2010 (first and second) are dismissed.
(3)The request for suppression is refused.
(4)The applicant to pay the first and second respondents’ costs as assessed.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEYSYG 398 of 2008
KATHRYN SEIDLER Applicant
And
UNIVERSITY OF NEW SOUTH WALES First Respondent
AUSTRALIAN GRADUATE SCHOOL OF MANAGEMENT Second Respondent
REASONS FOR JUDGMENT
1.These proceedings were commenced by an “application in a case” filed on 3 June 2010. The applicant, Ms Kathryn Seidler, had previously made an application to this Court on 20 February 2008, in which she sought relief arising from allegations of direct disability discrimination (s.5 of the Disability Discrimination Act 1992 (Cth) (“DDA”)). The Act under which she sought to make the complaint was stated in that application as the Disability Discrimination Act 1975.
Background
2.The respondents were said to be the University of New South Wales (“the University”) and the Australian Graduate School of Management (“AGSM”). Ms Seidler had been a student at the University and had been employed by the AGSM.
3.The matter invoked this Court’s jurisdiction pursuant to then s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“HREOC Act”). There is no issue that a termination of a complaint was given by a delegate of the President of the Commission. The application was directed to the docket of Smith FM.
4.On 11 February 2009 Ms Seidler filed in this Court a Notice of Discontinuance (“NOD”) of these proceedings. Ms Seidler now seeks to reopen these proceedings.
5.The application now before the Court seeks 40 orders. Ms Seidler has filed a large volume of material in support of that application. While the overwhelming body of this material is said to be in the form of affidavits, they are in reality best understood as arguments and submissions.
Before the Court
6.At the hearing of this matter, on 14 to 16 September 2010, Ms Seidler appeared on her own behalf. Mr J B Mattson appeared for the respondents.
7.The Annexure to this judgment sets out the rulings I made during the course of the hearing as to the admissibility or otherwise of the content of the various affidavits filed by Ms Seidler, as well as annexures to the affidavits.
8.Ms Seidler, perhaps understandably as a lay person, filed the large part of her material before the Court in affidavit form, although much of it was not “evidence” as that term is understood in the litigious context. The remainder of the material was presented (not filed), and consisted of long email communications to the Registry of the Court as well as to the Court. For the most part these concerned the proposed conduct of the proceedings. In addition, Ms Seidler produced documents during the course of the hearing.
9.The material can, for a large part, be described as incomprehensible. In part due to what was purported to be “legal” argument downloaded from the internet, and in another part a combination of assertions, which may have meaning for the author but which without context become impenetrable. See for example (at [63] of her affidavit of 3 September 2010):
“There is no evidence the court contacted me when I was doing some actions on my matter, the court is entitled to expect the Respondents did as such, any 15 minute notice to me prior to hearing regarding the records issue and damages ensuing are the Respondents responsibility”.
10.Other material was so irrelevant to the fact in issue, and any possible fact in issue, that even if Ms Seidler were to succeed in having the NOD set aside its inclusion could not be countenanced (see for example the reference to United States’ President Obama’s Veterans Policy at [71] and annexure “FF” to her affidavit of 15 July 2010.)
11.Also before the Court was a bundle of relevant documents tendered by the respondents (Tender Bundle – “TB”), the great majority of which were admitted into evidence as being relevant to a fact in issue (see the Annexure to this judgment).
12.It is clear that, on any attempt to engage with the material, and as confirmed by Ms Seidler’s demeanour and statements at the hearing, she bears a deep sense of grievance towards the respondents, their legal representatives, a number of staff of the University, and indeed her own former legal representatives.
13.Her material and her presentation of it, her continuous attempts to engage with the Registry of the Court outside of what would be said to be appropriate regular litigation norms and practices, and her manner of engagement in these proceedings, must also be seen in light of her emotional, mental, and psychological state, as variously alluded to in parts of her material.
The Complaint
14.Ms Seidler made a complaint to the then Human Rights and Equal Opportunity Commission (“HREOC”). This related to events in 2005 and 2006. (See Annexure “B” to Ms Seidler’s affidavit of 20 February 2008.) The basis of the complaint was said to be the discrimination and unfair treatment of her by the University because of a physical injury (repetitive strain in her arms), allegedly developed while studying and while employed by the AGSM, at “predominantly” the University.
15.This complaint was “explained” in a long discourse, which included a number of allegations about several academic staff. For reasons which are apparent below, I note that in this discourse some tangential reference was made to the behaviour in class of one of these academics. Initially this was put as an example of aggressive and hostile behaviour. It was said to be “questioning” in class about fertility. It is only now that Ms Seidler has sought to characterise this as a separate complaint under the Sex Discrimination Act 1984 (Cth) (“SDA”).
16.HREOC understood the complaint lodged to be alleging discrimination in the areas of education and employment, and to be made within the scope of the DDA. The University’s response (see Annexure “C” to the affidavit of Ms Seidler of 20 February 2008) certainly responded to the complaint on this basis.
17.HREOC terminated the complaint of “disability discrimination”. The relevant Notice was issued on 23 January 2008 by a delegate of the President of the Commission. (See annexure “A” to the affidavit of Ms Seidler of 20 February 2008.)
18.In her original application to the Court of 20 February 2008, Ms Seidler identified only the DDA as the Act under which the application was being made to the Court. Yet in her material filed in support of her application in a case Ms Seidler has sought to extend the legislative basis, including a reference to the SDA, to other Acts not within the ambit of what is usually seen in Human Rights/Discrimination matters (for example the Trade Practices Act 1974 (Cth) (“TPA”)), as well as various breaches at common law.
19.Whatever the scope of Ms Seidler’s grievance, its legislative expression, for the purposes of the current proceedings, is confined to the DDA. That is how it was originally expressed by her, was treated by HREOC and the University, was understood at the time of the notice of termination, and indeed formed the legislative basis under which the complaint was originally expressed to this Court.
20.What Ms Seidler failed to realise in submitting the voluminous material to the Court now was that the application in a case was not an opportunity to expand the scope of her complaint to HREOC. This Court’s jurisdiction arises, and arose as at February 2008, under s.46PO of the then HREOC Act. This requires the Court to confine itself to the matters raised, and remaining at termination, before the Commission.
21.Further, and in any event, in relation to the application in a case, what needs to be understood is that whatever Ms Seidler’s view of the range of her grievance or grievances, on 11 February 2009 she filed a NOD in relation to the originating Court proceedings.
22.The threshold issue, and indeed, for the reasons set out below, the determinative issue in these proceedings, is whether the NOD can be, and if so should be, set aside.
23.With this in mind (and as shown in the Annexure to this judgment), I approached Ms Seidler’s material in the following ways. First, otherwise as subject to the rules of evidence, I admitted as evidence that material that went to the issue of why the NOD should be set aside. Other material possibly relevant as argument, but not meeting the rules of admissibility, I dealt with in the nature of submissions.
24.Both of these included material dealing with allegations of fraud on the part of her own legal representatives and possibly those of the respondents. (Noting that two different sets of lawyers represented the respondents in various matters involving Ms Seidler.) This may have included some allegations of conspiracy and conduct akin to fraud. The circumstances being that Ms Seidler alleged that this conduct induced and explained her lodging of the NOD.
25.A second cohort of material that I admitted provisionally was material that went to the substantive issue of the originating application. If Ms Seidler were to pass through the gateways of the question of the Court’s power and the actual setting aside of the NOD, then this material was relevant to the issue of the complaint in the originating application to the Court. Again, some of this material I dealt with in the alternative, that is in the nature of submissions.
26.I approached the material going to the SDA with some leeway to Ms Seidler. Such material was not, on its face, relevant to any issue before the Court, even if Ms Seidler were to pass through the threshold issues. However, given the reference to the incident above (at [15]), I provisionally admitted this as evidence and/or treated it as submission, to allow Ms Seidler to establish relevance and connection if the opportunity were to arise.
27.A further category of material I did not admit into evidence and/or agree to read as submission. This material related to the various complaints or presentations arising out of a number of other Acts not relevant to any issue in these or the original proceedings.
28.I should just note that Ms Seidler and the respondents appear to have a lengthy and extensive litigation history. Other than how it affects the current proceedings, none of this is relevant for consideration. I say for Ms Seidler’s understanding that the Court is not in a position to redress all the perceived iniquities Ms Seidler feels.
29.However, what was considered for inclusion was material that surrounded a Heads of Agreement (“HOA”) and Deed of Release (“DOR”) between the parties, which then led to the filing of the NOD. (For ease, see Tab “Y”, Tab “U”, and Tab “II” to the TB.)
30.These documents were a part of the negotiation between the parties arising from some of the matters raised in the HREOC complaint, subsequent proceedings in this Court, and proceedings by Ms Seidler against the respondents in the District Court of New South Wales (“District Court”) (“the personal injury matter”).
31.The NOD in the proceedings in this Court arose from the agreement reached, and as evidenced by these documents (as at [29] above and other related documents variously referred to below), to resolve the two sets of litigation. However, given its nature, I ultimately treated much of what was included in Ms Seidler’s “affidavits” in relation to these matters in the nature of submissions. (See further below.)
The Notice of Discontinuance: The Legal Context
32.Ms Seidler has sought many orders of the Court in the material she has filed. Proposed order 14 in the application in a case of 3 June 2010 is the only order to focus on the threshold issue of the setting aside of the NOD. I will return to her argument in more detail below. But I note for the immediate purposes that her argument is that the NOD was filed as a result of fraud, duress, “undue influence”, “unconscionability”(?) and “criminal collusion”.
33.The respondent’s position is simply that there is no ability or power for the Court to set aside the NOD in circumstances where it was regularly entered. Given that their position is that the NOD was so entered, the application in a case should be dismissed.
34.The respondents did allow that, even if such a power existed in the Court, or even could be said to be implied, it is limited to what were described as “exceptional circumstances”. That is, where fraud or mistake is involved, or it is otherwise appropriate in the interests of the administration of justice.
35.In Applicant A26 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1050, Mansfield J said (at [2]):
“Discontinuance of proceedings is a process by which an applicant puts an end to the claim in the proceedings. It is, however, permitted only if it does not amount to an abuse of process: Castanho v Brown and Root (UK) Ltd [1981] AC 557. Lord Scarman at 571 pointed out the curiosity of treating an act which purports to terminate a proceeding as being an abuse of that proceeding, but nevertheless regarded it as appropriate to override illogicality ‘if justice requires’.”
36.Further, at [5]:
“In my judgment, the respondent sensibly and appropriately acknowledged that the Court has power to set aside the discontinuance in its discretion, as part of its inherent power to prevent injustice, if the circumstances alleged are made out. Thus, it is not necessary to explore in any detail the content of the concept of abuse of process in the present context. It was accepted by the respondent that the allegations, if made out, fell within its reach.”
37.It is important to note, given what follows below, that the “Court” referred to above was the Federal Court of Australia, and not this Court.
38.I note also NACU of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (with Corrigendum dated 17 November 2004) [2004] FCA 1444 and Applicant NACT of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 316 in relation to the question of reopening proceedings following a notice of discontinuance of appellate proceedings in the Federal Court. See also Christodoulou v Disney Enterprises Inc [2006] FCAFC 183.
39.The University’s submissions make reference to these authorities, essentially in support of the proposition that a NOD is a process by which an applicant puts an end to the claims in the relevant proceedings, but that an implied or inherent power exists in the Federal Court to set aside such notices in certain circumstances.
40.While these cases are clearly informative, they are in my view of limited application in the current proceedings. They concerned notices filed in the Federal Court, and in one instance a NOD in an appellate matter.
41.Two further relevant authorities were put before the Court. The first, SZFOZ v Minister for Immigration and Citizenship [2007] FCA 1137 (“SZFOZ”), in support of the submission that doubt has been expressed about the power of this Court to set aside a NOD. The second, Maddison v Qualtime Association Inc [2010] FMCA 25 (“Maddison”), in which Wilson FM concluded that this Court has an implied power to set aside a NOD.
42.The respondents’ position is that the first (SZFOZ) was correct to express doubt about this Court’s power to set aside a NOD, and that there is good reason not to follow the second (Maddison).
43.Ms Seidler did not directly address the issue of the Court’s power. But it can be inferred from her insistence before the Court, and the pressing of her complaint that the discontinuance was effected because of fraud and collusion, that she expected the Court to have such a power so as to be able to grant relief to redress the injustice which she believes to have occurred.
44.SZFOZ, per Ryan J, was a matter on appeal from this Court. Initially Driver FM dismissed an application to reopen a matter where a NOD had been filed in relation to an original application in a migration matter (SZFOZ v Minister for Immigration & Anor [2007] FMCA 465).
45.In that case, Driver FM proceeded on the basis that the question of the setting aside of a NOD involved an exercise of the Court’s discretion. He therefore considered the prospects of success of the original application, the reasons for the discontinuance, and whether any injustice would accrue to the respondent in that case.
46.On appeal, Ryan J said that the orders made by Driver FM dismissing the application to reopen the matter could be supported on the “narrower” ground of an absence of power to set aside a NOD which had been “regularly effected”.
47.His Honour referred to r.13.01 of the Federal Magistrates Court Rules2001 (“the FMC Rules”) as providing the mechanism for discontinuance (at [15]). He also said that there was nothing in the relevant provisions of the FMC Rules: “… which empowers the Court to set aside a notice of discontinuance or to reinstate proceedings which have been regularly discontinued in accordance with r.13.01” (at [17]).
48.The respondents in the current proceedings characterise what was said by Ryan J in SZFOZ as an expression of doubt about the power of the Federal Magistrates Court to set aside a NOD.
49.I do not agree.
50.First, Ryan J did not expressly say that Driver FM was wrong to proceed on the basis that the question of setting aside a notice of discontinuance involved an exercise of discretion.
51.Rather, he said that the orders of Driver FM could be supported on a “narrower ground”. In my respectful view, the plain implication here was that there was a narrower basis on which to proceed. Not that the basis on which he did proceed was not available.
52.The University appears to submit that SZFOZ stands for the proposition that, once a notice has been filed in accordance with r.13.01, no power to set aside exists. That is, so long as the party seeking discontinuance complies with the forms of r.13.01.
53.This in my view is itself a “narrower” view of how his Honour proceeded to dispose of the appeal in this matter.
54.The words “regularly effected” (as at [15]) are in my view important. While at [17] his Honour said there is no power in this Court arising from the FMC Rules to set aside a notice of discontinuance or to reinstate proceedings which have been “regularly discontinued in accordance with Rule 13.01”, his Honour then went on to consider the “rare” circumstances where the Court may accede to the request to set aside a notice of discontinuance.
55.This includes an abuse of process (at [18]), the “inherent” power to prevent injustice (eg where filed without consent) (at [19]), and “probably have an inherent power to set aside a discontinuance which has been procured by fraud or duress” (at [20]).
56.His Honour found that in the case before him, by contrast, there was no acknowledgement of the existence of circumstances: “… which would enable the filing of a notice of discontinuance by the” applicant “to be characterised as an abuse of process or otherwise to enliven the inherent power of the Court to prevent injustice” (at [20]). In context, his Honour must have been referring to this Court.
57.In these circumstances, his Honour disposed of the appeal on the basis of the absence of any (express) power in the Federal Magistrates Court to set aside the NOD.
58.To the extent that Wilson FM found in Maddison that the Federal Magistrates Court had an implied or incidental power to set aside the notice, the respondents invited the Court not to follow this judgment. The reasons being that:
1)The authorities relied on in Maddison referred to the Federal Court and other Courts, but not this Court. Maddison emphasised the distinction between a superior court of record and this Court.
2)Maddison mischaracterises what was said in SZFOZ. This is said with reference to Maddison at [21]. I understood the respondents’ position to be that, to the extent that Ryan J said that there was an absence of power in this Court to set aside a NOD, and as Maddison proceeded to the contrary, then a “mischaracterisation” occurred.
3)The cases cited in Maddison relate to the setting aside of judgments and orders pursuant to r.16.05, and not NODs pursuant to r.13.01.
59.In my view SZFOZ does not create doubt, as submitted by the University now. Justice Ryan did not say that Driver FM was wrong in seeing this as an exercise of discretion. I note that in SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 6 a Full Court noted that a Federal Magistrate had proceeded on that basis in relevantly similar circumstances, and did not say he was wrong to do so, although the Full Court proceeded to deal with the matter on another basis.
60.What Ryan J said was that the orders of Driver FM can be supported on a “narrower” basis. In my respectful view this allows for the proposition that they may also have been supported on the wider, not narrower, approach taken by the Federal Magistrate, but that it was not necessary to consider that in the circumstances of the case.
61.In Maddison, Wilson FM (at [21]) noted that Ryan J accepted that there is a discretion in the Federal Magistrates Court to permit the withdrawal or setting aside of a NOD, but does not discuss the matter in any depth. With respect, given what I have expressed above, I agree with that part of what Wilson FM said.
62.However, also with respect, I have some difficulty with what is then said in that same paragraph of Wilson FM’s judgment (at [21]):
“His Honour [with reference to Ryan J] did say, at [15] that the orders of the Federal Magistrate could be supported on the narrower ground of an absence of power to set aside a discontinuance which has been regularly effected, however that observation was made per incuriam.”
63.I understand the term “per incuriam” to translate literally from Latin into English as: “through want of care”, and to have at least two interrelated meanings or aspects of understanding in the litigation context. It could not be that Wilson FM used the term “per incurium” in its meaning of “ignorance”, “forgetfulness” of an earlier authority or a “mistake”. Given that this was a matter on appeal from this Court to a superior Court, it is not for this Court to then say that a “mistake” was made by that Court. Further, it is trite to say that, in any event, in the circumstances this Court is bound by what Ryan J said.
64.It must therefore be that Wilson FM used the term in the sense of something said without reference to legislation or authority. It was on this basis, therefore, that he proceeded to consider authorities dealing with the setting aside of orders and judgments.
65.With respect, my difficulty with this is that, as the respondents in the current case submit, these authorities plainly do not deal with the very different circumstances of a NOD. That the two are different for current purposes is evident from the very rules of this Court (r.13 – dealing with effecting of notices of discontinuance, as distinct to r.16 – dealing with the setting aside of orders and judgments), as indeed was otherwise recognised in Maddison (at [15]).
66.What I am left with is the judgment of Ryan J. As I said earlier, a matter on appeal from this Court and therefore binding on me.
67.I do not agree with the respondent that SZFOZ causes doubt. In my respectful view, when read holistically and plainly, SZFOZ sets out in effect a sequential direction for this Court to follow in matters of this type.
68.First is to decide whether the NOD was “regularly effected” ([15]), or whether the proceedings were “regularly discontinued” ([17]).
69.In this regard, respectfully, I do not read his Honours judgment as limiting this enquiry to the strict requirements of the form pursuant to r.13.01.
70.In my view, when the reference to r.13.01 at [15] to [17] is read in context of what is said at [18] to [20], that is that there are “rare” circumstances where the Court may accede to a request from a party affected to set aside the notice, then this explains why Ryan J was careful not to expressly say that Driver FM was wrong in the approach that he took. That is, the exercise of the discretion to employ an inherent power.
71.That approach also gives meaning to the words “properly effected”. I respectfully understand that a discontinuance that involves an abuse of process or has been procured by fraud or duress may also lead to the notice being set aside.
Ms Seidler’s Position on the NOD
72.What were the circumstances, therefore, on which Ms Seidler relies to submit fraud, collusion, and duress as factors which should lead to the setting aside of the notice of discontinuance?
73.It must be said that Ms Seidler’s submissions, both oral and to the extent that I treated much of her written “affidavit” material as being more properly in the nature of submissions, required some considerable effort in order to pierce the hyperbole, jargon, emotion, irrelevancies and lack of real explanation and comprehension.
74.For example, her oral submissions as to why the NOD should be set aside began with references to “an undisclosed costs agreement” and allegations of collusion between her lawyers and the lawyers representing the respondents’ insurance interests.
75.The following is relevant to understanding the factual basis of Ms Seidler’s complaint. Ms Seidler had commenced two court actions against the respondents. One was the application to this Court arising from the termination of her complaint to HREOC. The other was an action in the District Court in relation to a personal injury claim, apparently arising from generally the circumstances giving rise to the discrimination complaint. While there are references to this scattered throughout the material before the Court, and also taking into account Ms Seidler’s oral submissions, the primary sources for the factual sequence in this regard are: Ms Seidler’s affidavit of 3 September 2010 at [79] (which sets out a relevant chronology); the annexures referred to in that paragraph; and relevant documents in the TB.
The Factual Basis
76.The parties entered into negotiations in relation to both matters:
1)(a) August 2008. The University’s solicitors (Bartier Perry – “BP”) wrote to Ms Seidler’s solicitors (Milne Berry Berger & Freedman – “MBBF”) proposing a settlement of the “disability discrimination” matter before this Court. (See “R” of the TB.)
(b) The offer included that each party bear their own costs, and that Ms Seidler agree to discontinue the disability discrimination proceedings and sign a DOR, which was sent as a draft.
2)(a) 15 August 2008. MBBF responded.
(b) The response advised that Ms Seidler would agree to discontinue the discrimination proceedings, each party to bear their own costs. Ms Seidler would only agree to sign the DOR if she was able to continue to pursue the District Court action (“S” of the TB).
3)22 August 2008. Another draft DOR was sent to MBBF (“U” of the TB).
4)24 September 2008. BP wrote again to MBBF enquiring as to the lack of progress (“V” of the TB).
5)30 September 2008. MBBF responded to the effect that Ms Seidler was still “obtaining advices” from her solicitors in the District Court matter (Carrol & O’Dea – “CO’D”) (“W” of the TB).
6)(a) 14 October 2008. An HOA was signed in relation to the District Court proceedings. This was signed by Ms Seidler and her legal representative (“Y” of the TB).
(b) The amounts involved are important to understanding the basis to Ms Seidler’s complaint. These are:
i) Ms Seidler agreed to settle the personal injury claim for “$65,000 including all costs and expenses”.
ii) The settlement was conditional on reaching agreement on the DOR in relation to the disability discrimination proceedings in this Court.
iii) Ms Seidler was to pay her own costs out of the settlement sum. This was agreed at $20,000.
iv) Ms Seidler was to receive an amount of $45,000 [$65,000 - $20,000]. Out of this amount she would have deducted amounts owing to Centrelink ($9,000) and Medicare ($1,000). [$9,000 + $1,000 = $10,000 deducted from $45,000 = $35,000.]
7)There appeared to be some delay on the part of Ms Seidler and/or her solicitors in finalising these matters (see “Z”, “AA”, and “BB” of the TB).
8)It appeared that at some time by or during January 2009 Ms Seidler was no longer legally represented by CO’D in the District Court matter ([79] of her affidavit of 3 September 2010 at Item 20/1/09). There appears to be communication directly from Ms Seidler to the respondents’ various solicitors (BP and Griffin Hildich – “GH” – who represented the respondents’ interests in the District Court matter) (see “F” to her affidavit of 3 September 2010 and “CC” of the TB).
9)As Ms Seidler submitted before the Court now, albeit for a different purpose (to show fraud etc on the part of the lawyers), there were a number of difficulties identified by her with the DOR. This was in the time when she claimed to have been legally unrepresented (see generally annexure “F” to her affidavit of 3 September 2010, and Items “4/2/09” and “5/2/09”, “6/2/09” and “9/2/09” at [79] of her same affidavit).
10)What is of relevance, given the complaint now by Ms Seidler, is that she undertook communications and negotiations directly with solicitors (GH). Ultimately, a deadline for the signing of the DOR was set at 6 February 2009.
11)The DOR was signed by Ms Seidler on 9 February 2009 (see “II” of the TB).
12)The NOD was filed on 11 February 2009.
Consideration
77.At the heart of Ms Seidler’s complaint now, her allegations of collusion between lawyers, the references to the “undisclosed costs agreement”, and the allegations of fraud, sits an e-mail from a Carolyn Wilson of GH to Ms Seidler, dated 5 February 2009 (see “C” and “F” of Ms Seidler’s affidavit of 3 September 2010 at page 3).
78.The e-mail is in the following terms:
“Dear Kate
I have reconsidered the terms of the in principle agreement reached at the settlement conference on 14 October 2008. The settlement reached was $80,000. This sum was agreed to be split $65,000 for damages and $15,000 in respect of your legal costs. While the label attached to the $15,000 is for your legal costs, it nevertheless forms part of your claim and this Deed must include this amount to honour the agreement that was reached between the parties. It is also necessary to bring about a complete and final settlement of the claim.
I have therefore made changes to the Deed to reflect this. If the terms of clause 1.3 is not acceptable then I suggest it can be altered to authorise our firm to hold the money in trust pending a final resolution of the dispute with your former lawyers.
We have sought further instructions from our client who has instructed us to agree to a mutual release and insertion of clause 10. As to the attachments we are happy that the 2 Notices of Discontinuance and the Consent Order be attached to the Deed. The other amendments required by you are not acceptable. There will be no further negotiation on the terms of the Deed other than in respect of clause 1.3.
Kind Regards
Carolyn Wilson
Griffin Hilditch Lawyers”
79.Ms Wilson stated that the “head amount” in the HOA is $80,000. Although not put before the Court in any proper evidentiary context, Ms Seidler submitted that Ms Wilson also conveyed to Ms Seidler in a telephone call that this was the relevant amount, although it appears that she was advised by telephone some days later that this was a mistake (see Item “9/709 [sic 9/2/09] at approx 3.46 pm local time” of [79] of her affidavit of 3 September 2010 and annexure “G” to the same affidavit). The “fact” of the subsequent call was not in dispute. What remained in dispute was that Ms Seidler submitted that there was no “mistake”. That is, that the amount of $80,000 was what had been originally agreed.
80.To a large extent Ms Seidler’s submission of fraud and collusion rests on a calculation of various amounts which, in reconciliation and in effect, she says shows that a fraud (not a mistake) had been perpetrated by all the lawyers involved.
81.The amount consequent on the fraud is said to be $15,000. This appears to be the amount involved in what Ms Seidler has described as being the “undisclosed costs agreement”.
82.Her calculations are as follows:
1)The amount agreed was $80,000. This was what Ms Wilson confirmed to her, at least on the first occasion of the telephone call and by email in early February 2010.
2)Further, she was told at this time that this amount reflected $65,000 “for damages” and $15,000 for her “legal costs”. This equated to $80,000.
3)Importantly, as is evidenced by the e-mail exchanges (see “C” and “F” of Ms Seidler’s affidavit of 3 September 2010) this was said to be what was agreed at the time of the HOA, and which had to be reflected in the DOR. Remembering that these exchanges took place in early February 2009 with explicit statements by GH to Ms Seidler that unless the DOR was signed soon the offer to settle would be withdrawn.
83.Further, in support Ms Seidler referred the Court to the Bill of Professional Costs presented to her on 6 February 2009 by her solicitors in the District Court matter (CO’D) (see Annexure “TT” to her affidavit of 3 September 2010).
84.The total amount due as costs and disbursements was $30,543.83. For calculation purposes, this was rounded out to $30,500.
85.Ms Seidler submitted that her counsel had “verbally” told her that his fee would be $4,500. (Although it should be noted that the amount in the memorandum of fees subsequently presented by counsel was $3,300 (see “TT” to her affidavit of 3 September 2010).)
86.Ms Seidler’s calculation therefore is that her total legal fees were to be $35,000 ($30,500 + $4,500).
87.Her calculations continue with a reference to that part of the HOA (see “Y” of the TB) that indicate that she would receive the amount of $45,000. The calculation was that:
80,000 : à the amount “truly” agreed
– 35,000 : à her total legal costs (see [86] above)
= 45,000 :à the amount stated at [4] of the HOA as the
amount she was to receive.
88.As inventive and convenient as these calculations may be, they do not support any allegation of fraud, collusion or other wrong doing by any of the lawyers involved.
89.First, the terms of the HOA are quite clear that the settlement sum is expressed as $65,000 “including all costs and expenses”. There is nothing in this document, signed by Ms Seidler on 14 October 2008, to even suggest that it was anything else.
90.Second, nor is there anything before the Court, up to the intervention by Ms Wilson, to suggest that the amount was $80,000, as opposed to $65,000.
91.Third, what must be borne in mind is that the HOA was signed on 14 October 2008. It was an agreement to settle the District Court personal injury proceedings. (Remembering that solicitors involved in that were CO’D for Ms Seidler and GH for the respondents’ interests.)
92.Parallel to this were the Federal Magistrates Court proceedings. (As set out above, in these Ms Seidler was represented by MBBF, the University and AGSM by BP.) An offer to settle this matter was made as referred to above. The draft DOR relevant to these matters made no reference to any amount of money to be paid to Ms Seidler. The offer and subsequent acceptance was said to be on the basis that each party was to bear their own costs (see “R” of the TB for the offer, and “S” of the TB for the acceptance, communicated to BP by MBBF acting on instructions). MBBF advised that Ms Seidler had agreed to settle on the terms of the BP letter of 15 August 2008 (see “S” of the TB).
93.The draft DOR in this matter (at “U” of the TB, see also “V” and “W”) was separate to the HOA in the District Court matter.
94.In relation to the Federal Magistrates Court proceedings, there was some delay in signing that DOR by Ms Seidler. BP wrote to MBBF on 17 December 2008 and 2 February 2009 (“AA” and “BB” of the TB).
95.The two matters appeared to converge, however, in the shape of the draft DOR in early 2009. What is clear from the relevant material in the TB (not challenged by Ms Seidler) is that she took an active role in the exchanges, particularly after she said solicitors ceased to act for her. (See generally “CC” and “DD” of the TB.) In any event, despite Ms Seidler’s submission that she was left without legal representation, MBBF wrote to BP on 5 February 2009 advising that they had been “reinstructed” for the limited purpose of negotiating: “… the Federal Magistrates Court side of a Deed of Release releasing both those proceedings and the ones in the District Court” (at “EE” of the TB).
96.The draft DOR attached to the letter of 5 February 2009 from MBBF (“EE” to the TB) clearly makes reference to an amount of $65,000 as being: “the entirety of the settlement sum” (see 1.1 at page 177 of the TB) to be paid to Ms Seidler’s account. While certain undertakings by Ms Seidler are referred to, the settlement sum is clearly expressed as being $65,000, and not $80,000.
97.BP made the position clear in relation to the proceedings before this Court in a letter of 6 February 2009 (“FF” of the TB). That was that if the DOR was not signed by 7 February 2009 they would proceed to seek to have the Federal Magistrates Court application otherwise struck out.
98.A number of “last minute” exchanges appear to have occurred between Ms Wilson of GH and Ms Seidler (at “GG” of TB). What these reveal is an active involvement by Ms Seidler in the negotiation process. For example, she makes specific reference to the draft DOR at that time and states: “It looks like most of this would be ok as I have spoken to legal” (page 183 of “GG” of the TB).
99.Ms Seidler signed the DOR on 9 February 2009 (“II” of the TB).
100.Other than the reference to $80,000 by Ms Wilson, as referred to above, nowhere in any of this material is there any reference to $80,000. In fact, all the references are to $65,000 as the relevant settlement amount.
101.Ms Seidler’s “calculations” now do not support any contention that the amount agreed was $80,000.
102.The plain words of the HOA and subsequent relevant documentation (other than the e-mail from Ms Wilson) make it clear that the amount agreed, and as confirmed in the final draft version of the DOR sent to Ms Seidler which makes clear reference to $65,000, is $65,000 (“HH” of the TB).
103.Even if some confusion had been created by Ms Wilson, what is abundantly clear is that the final draft and the signed DOR made reference unambiguously to $65,000 as being the agreed full settlement sum.
104.Further, Ms Seidler’s “calculations” now clearly derive from either some misunderstanding, at best, or some wilful attempt to obfuscate the fact that the amount originally designated as her legal costs in the HOA, that was a part of the $65,000 total ($20,000), represented what was said to be her party/party costs. The fact that her actual legal costs exceeded that amount was plainly inclusive of her solicitor/client costs. The respondents would properly only seek to address that amount that Ms Seidler incurred as a result of the interaction between the parties. Any additional costs as they related to her and her legal representatives would naturally not be of concern to the University and the AGSM.
105.There is no evidence before the Court other than Ms Seidler’s uncorroborated and, it must be said, self-serving statement that the settlement amount offered initially was actually ever $80,000. In the face of the overwhelming evidence to the contrary, this must be rejected.
106.In these circumstances, her bare claims of fraud and collusion by the various lawyers are certainly not supported by any evidence that can survive scrutiny.
107.Ms Seidler complains generally that her various lawyers and the lawyers representing the respondents’ interests colluded or conspired to deprive her of a just settlement. Before the Court she described it as a “bad deal”. The implication, if not explicit complaint, was that she would not have entered into such a “deal” had it not been for the actions of the lawyers.
108.She submitted that, contrary to the claim by the respondents that she participated in the “settlement conference” leading to the HOA and then the DOR, she was not present ([79] of her affidavit of 3 September 2010).
109.At the hearing before the Court, Ms Seidler ultimately explained that what was meant was that she was not present in the actual room where her Counsel negotiated with the University’s representative. She was, however, in the vicinity, and was accompanied by another of her legal representatives.
110.It cannot be said in a real sense that she was not present at these discussions. There is nothing other than her assertions before the Court to suggest that her counsel and solicitors did not comply with the strictures of their ethical duty towards her. In the circumstances, her claim that she did not attend, and therefore did not participate, at the conference leading to the HOA can only be seen as a self-serving contrivance nearly two years later.
111.In all, Ms Seidler’s focus in oral submissions before the Court on the issue of her “costs agreement” with her solicitors, and the actions of her counsel, may go to the question of her relationship with her legal representatives. If Ms Seidler now, after some considerable time, has a complaint about them, then there are appropriate avenues for this to be pursued. (She indicated to the Court that such a course had been unsuccessfully pursued.)
112.For the purposes of these proceedings before the Court, as Mr Mattson submitted, the complaint about any “undisclosed costs agreement” with her own lawyers says nothing about the University, the AGSM, or their legal representatives.
113.Even if it was the case that she was not provided with a “bill of costs” prior to the settlement negotiations (and it was never clear which of her solicitors this referred to, although in context probably to CO’D) this may provide some basis for a complaint to the relevant authorities concerned with the conduct of solicitors. But on its own, it is no basis for even alleging fraud, let alone making it out.
114.Similarly, it cannot be said that, on its own, this establishes that some “mistake” was made in the settlement figure in the HOA, and ultimately in the DOR.
115.In relation to the DOR there is the material, provided in part by Ms Seidler herself (the e-mail exchanges, see Annexure “F” of her affidavit of 3 September 2010, and “GG” of the TB), that reveals her active participation in relevant negotiations. The bill of costs and the fees charged by her counsel do not alter the fact that she personally and actively participated in the negotiations, and ultimately voluntarily entered into the DOR and the consequent lodging of the NOD.
116.It may be that Ms Seidler now feels she entered into a “bad deal”, and that her current financial situation requires a “better deal” (see, for example, the heading, or as she explained to the Court the “notes to herself”, at page 9 of her affidavit of 21 May 2010: “My current living> Rent will be out next month”). But her current financial needs do not go to the matter of fraud, mistake or collusion by legal representatives at the relevant time, let alone make out her claims in this regard.
117.Such allegations are serious, particularly when made against solicitors and members of the Bar. That fact alone would not deter this Court from making any such findings. But Ms Seidler’s references to an “undisclosed costs agreement” as it is said to arise from the circumstances set out above, and her claims that she did not participate in various relevant negotiations, are simply not made out. These allegations do not provide any basis for the setting aside of the NOD.
118.Another matter pressed at the hearing before the Court was Ms Seidler’s allegation that there was duress involved in her ultimately signing the HOA and the DOR, and then the lodging of the NOD.
119.I understood this to be said to arise from the circumstances that in her dealings with her lawyers she felt “pressured” to sign the HOA, and that ultimately she was left without representation when it came to the signing of the DOR (combining the two proceedings) and the filing of the NOD.
120.The complaint as it relates to the HOA is subsumed in the consideration below.
121.As it relates to the DOR, as ultimately signed by her, and the NOD it must be rejected as a basis for establishing some factor such as to say the NOD (and for that matter the DOR) was not regularly effected.
122.First, Ms Seidler was not without representation at the time immediately before the signing of the DOR (that combined both Court matters) in February 2009. As referred to above, MBBF had been “reinstructed”, albeit for a limited, but nonetheless highly relevant, purpose.
123.Second, even if it had been that Ms Seidler did not have any legal representation at that time, that on its own does not mean that the DOR was improperly executed and that the NOD was not regularly effected.
124.Third, the real thrust of Ms Seidler’s complaint is that she was left on her own and that the respondents’ solicitors somehow took advantage of that situation. It is quite understandable that a self-represented applicant might feel at some disadvantage in having to deal with a firm of lawyers representing the opposing side. But this alone does not reveal wrongdoing on the part of the respondents’ lawyers. Nor indeed on the part of her own lawyers.
125.Fourth, what remains is that at the relevant time of the signing of the DOR and the making of the NOD Ms Seidler was legally represented. Solicitors at MBBF did not file a notice of withdrawal as her solicitors, as is required by this Court’s Rules, until 9 April 2010.
126.Further and importantly, the various documents referred to above reveal an active and vigorous personal involvement by Ms Seidler. Even if she felt her options were limited, and even in the face of what she perceived to be “intransigence” on the part of the University’s lawyers, what remains is that she signed and filed the NOD. The lawyers “uncompromising” position by February 2009 may at its highest be said to be playing “tough”, but in context, given the lengthy delay in converting the HOA into a DOR, it was justified in pursuing their clients’ best interests.
127.What must not be forgotten is that, in relation to the proceedings before this Court (the disability discrimination matter), the respondents and their lawyers, BP, took a clear and consistent position. Both before HREOC, and then before Smith FM in this Court, their position was unchanging in denying any liability under the DDA. A position with which, on Ms Seidler’s submission, her own lawyers appeared to agree. It was not unreasonable, given the time that had elapsed by January/February 2009, for the University’s lawyers to press for a resolution.
128.Ms Seidler may indeed have felt some “pressure” from them. In the circumstances this does not go to establishing that the DOR and the NOD were improperly procured.
129.Some of the matters from which she said she felt duress were in relation to “the privileged documents”, which were medical records that she asserts were disseminated beyond her legal representatives. These are dealt with below.
130.A matter relevant to the conduct of her legal representatives, duress, and the settlement conference again arises from the settlement amount.
131.Ms Seidler submitted to the Court that during the settlement conference she was told her “liability was shit” (see [37(b)] of her affidavit of 21 May 2010). This was therefore cast or depicted as being commensurate with the “lower amount of $65,000”. She somehow saw this as leading to a different mindset in relation to what (as she actually told the Court) was being “evaluated in another room”. That is, the settlement of her claims between her counsel and the respondents’ representatives when there was in existence a “significantly higher (settlement) amount” and a “significantly higher amount of legal costs being argued for in another room” (as submitted orally to the Court).
132.One aspect of this is that at the time of the negotiations leading up to the signing of the DOR, and probably the HOA (her complaint is unclear as to specific timing), her lawyers told her that she had: “… no choice but to sign” (Item “29/1/09” at [79] of her affidavit of 3 September 2010). Further, that her counsel apparently told her that “he threatened the Respondents to settle claiming if they did not he would leave me as a self-litigant” (Item “29/1/09” at [79 of her affidavit of 3 September 2010).
133.Why the respondents would see this as a threat was never made clear by Ms Seidler. In context, this should probably be understood as a complaint that Ms Seidler felt threatened by her lawyers that if she did not sign the HOA, and then subsequently the DOR, she would be left legally unrepresented.
134.I should just note that what her lawyers told her features prominently in Ms Seidler’s documentary material before the Court, and may be the subject of client legal privilege (s.118 and s.119 of the Evidence Act1995 (Cth) – also known formerly as legal professional privilege).
135.I took the view, however, that Ms Seidler had waived any such privilege. Particularly as before the Court she pressed that one of her key complaints was the actions of her own lawyers, which threw into doubt (in her mind) what they had told her.
136.In any event, any such complaint on its own does not reveal any wrongdoing on the part of her lawyers, such that her complaints about how the HOA and the NOD were signed can be sustained.
137.It may well be that her lawyers put to her that the best course open to her was to sign the HOA. It may also be that she was told that if she did not sign there was nothing further they could do to assist her. None of this reveals any wrongdoing on their part.
138.That Ms Seidler saw that she had no option but to sign the HOA because she would be left without representation before the Court does not, on its own, reveal any “threat” by her lawyers in any prejudicial sense. Whatever words may have been used, it is difficult in the circumstances to see this other than as some misunderstanding on Ms Seidler’s part as to the stark realities left to her, even if some note of exasperation on the part of the lawyers entered into their advice in the face of what appeared to be her intransigence in understanding what they described as her poor chances of success. This does not amount to duress on their part.
139.Ms Seidler also variously appears to state that the “offer” made by her lawyers to settle was done without her authority. The “best” expression of this complaint is probably to be found at [34] of her affidavit of 21 May 2010.
140.It must be said that the wording in the affidavit is not clear. But the complaint appears to relate to the time predating the HOA. It may be that Ms Seidler had not told her lawyers that she wanted to settle. That is, she may not have given them instructions to initiate any seeking of a negotiated resolution.
141.It may be that the reference to one of her lawyers: “offered to discontinue” and “release on this matter, and that I bear my own costs without my authority, instructions or consent …” (at [34] of her affidavit of 21 May 2010) is a claim that, from her perspective, no authority had previously been given to him to initiate a negotiated outcome, and the complaint is simply that, notwithstanding that lack of authority, he brought the University’s offer to her.
142.The subsequent reference at [34] to: “… he was authorised to offer to roll up the matters to save on costs without sacrificing the matter” is, on its face, difficult to discern. On the one hand, perhaps what is meant is that she still wanted to continue with the disability discrimination matter, but wanted to settle the District Court matter. On the other hand, even such a meaning leaves the inherent contradiction in: “roll up the matters… without sacrificing the matter”.
143.If the complaint is that she gave no instructions to initiate settlement discussions, then in the circumstances this does not reveal any wrongdoing or mistake on the part of the lawyers.
144.If, however, the complaint is that she gave no instructions for what ultimately appeared in the HOA, then there is nothing in the material before the Court to show that she was misled, duped, or that some mistake occurred. The HOA is a short document. It contains five sentences. It is in English. It is devoid of any tortuous convolutions in expression. Even to a lay person its terms are plain. It is clear at a glance. If the terms were not acceptable to her, then Ms Seidler had the option of not signing.
145.She also appears to claim (again [34] of the affidavit of 5 May 2010 is a convenient example) that she had felt “duress” in entering into the HOA. This appears to be another or repeated element of the complaint surrounding the settlement negotiations referred to above.
146.If so, it does not succeed for the reasons already given. That her legal advisers gave her certain advice as to the effect of the HOA and what she could properly claim, on its own, hardly counts as duress. In particular, her claim before the Court that her lawyers had acted without instruction in relation to the settlement amount in the HOA and then in the DOR (it should have been $80,000) must similarly be rejected on the material before the Court and in light of what has already been set out above in relation to this matter.
147.What also seems to have escaped Ms Seidler in making this suite of complaints is that, whatever the circumstances of the settlement negotiations in October 2008 leading to the HOA, by January/February 2009 it is quite clear that she had progressed to an active and direct participation in the discussions surrounding the DOR.
148.The claim that she was without legal representation at that latter time (although that is not entirely accurate) means that this also led to a direct personal involvement by her as to the detail. That is quite evident given the relevant e-mail exchanges before the Court. (See in particular [79] and “F” of her affidavit of 3 September 2010 and “CC” of the TB.)
149.It must be said that, on the material before the Court, once Ms Wilson of GH discovered her “terrible mistake” on 9 February 2009 (as Ms Seidler reports her conversation with her – see [79] and “G” of her affidavit of 3 September 2010) as to the settlement amount ($65,000 not $80,000), she does not appear to have taken adequate steps to explain this to Ms Seidler. But this does not reveal any basis for saying the amount of the settlement sum in October 2008 was $80,000. Nor that some fraud was being perpetrated. On the material before the Court, Ms Wilson’s first reference, in February 2009, to the settlement sum as being $80,000 was plainly a “mistake”. But on Ms Seidler’s own evidence, she was personally advised of this before signing the DOR and certainly the NOD. Both documents were signed by her in full knowledge of what the settlement sum was to be (that is, $65,000).
150.Ms Seidler also complains about the actions of the solicitors representing the respondents’ interests. Two elements appear to form this complaint.
151.First, that, in particular during the time leading to the signing of the DOR, she felt pressured by their insistence that she sign the DOR. This was compounded by what she said were claims by the “opponents legal” (see for example [34] of her affidavit of 21 May 2010) that she “had no personal injury legal…”.
152.A significant complaint against the respondents’ lawyers therefore, is that they knew she was without legal representation at the time of the signing of the DOR, yet they pressed her to sign. (See for example [13] of the affidavit of 21 May 2010.)
153.That solicitors for the respondents and representing its interests acted in what they saw as the respondents’ best interests, and not in Ms Seidler’s, is precisely what is required of them in their conduct of litigation on behalf of the University and the AGSM. As long as their actions remained lawful and there was no breach of any ethical duty by a solicitor, and none was even suggested on the material before the Court, then this complaint is of no assistance to Ms Seidler.
154.For better or worse, and I say this for Ms Seidler’s understanding, the system that pertains in this country requires lawyers to act (within certain and proper ethical constraints) in their own clients’ best interests, subject only to the overriding ethical duty to the Courts. Not to act in the interests of their opponents. This would include those phases of the process involving negotiation.
155.The second element is that the lawyers (“the legal” as repeatedly described by Ms Seidler) all colluded to ensure that she got a “bad deal”. At best, I understood this complaint to be exemplified by the events surrounding the HOA. Elements of this involved the lawyers talking in another room during negotiations for the HOA, with the consequence that the HOA and the DOR were themselves “false” in their terms.
156.Apart from mere assertion, and the extrapolation of the “$80,000 settlement sum”, Ms Seidler has presented no evidence whatsoever to support such serious allegations against all the legal practitioners involved in the two matters before both this Court and the District Court. It may be that her lawyers at times did not properly explain the relevant processes to her. Equally, it may be that Ms Seidler did not want to, or was incapable of listening to what was said to her. It is not necessary for this Court to make a finding in this regard.
157.On what is before the Court, what can be said is that there is nothing to even indicate an allegation of collusion between the lawyers such that the possibility of fraud could be considered.
158.I note also assertions that the lawyers colluded so that the proceedings before HREOC and the District Court were protracted. The fact that these proceedings may have taken a long time (and that is not necessarily shown on what is before the Court) does not on its own ground a charge of fraud, collusion or wrongdoing on the part of the lawyers.
159.There are clearly some sad aspects to this case. The sense of grievance felt by Ms Seidler against the University, various academics employed there, the University’s lawyers, as well as her own lawyers was quite palpable.
160.But the sense of grievance, and the depth of her emotion, does not suffice to provide any probative basis for her allegations, let alone to make out that the HOA was entered into under duress. That her lawyers may have said that her case had little merit, and therefore what was offered may have been a good offer, is part of the proper evaluation and advice proffered daily to clients by legal representatives. That clients may not like what they hear, or at times may even feel bewildered by the negotiation process, does not on its own establish duress. Nor is it made out in the current circumstances.
161.In relation to the DOR and the NOD, Ms Seidler did have some assistance in the immediate period leading up to the signing of the DOR. Solicitors from MBBF were reintroduced at that late stage, albeit in a limited capacity. (See, for example, “EE” of the TB – their letter dated 5 February 2009.)
162.In her affidavit of 3 September 2010 (at [76]) Ms Seidler says that she: “… did not sign the Deed [DOR] voluntarily or willingly”. The material before the Court, including material she herself has provided (for example the annexures referred to at [79] of the affidavit of 3 September 2010), reveals that she personally and vigorously involved herself in the negotiations at least in early 2009.
163.Further, and as to the earlier period, as Mr Mattson submitted, the original offer by the University and the AGSM to settle the disability discrimination matter was made when she was legally represented. (See, for example, “S” and “T” of the TB.)
164.Contrary to Ms Seidler’s assertion now, there is nothing in the material presented to the Court to show, let alone establish, that the DOR was not signed voluntarily.
165.I could not see any such express assertion in any of the material in relation to the NOD. However even if this assertion in relation to the DOR is expanded to consequently include the NOD, the material before the Court does not lend assistance or support to Ms Seidler’s assertion.
166.To the extent that Ms Seidler asserts the NOD was not signed voluntarily or willingly, on the basis of the conduct of her various legal advisers, this must also be rejected. While her e-mail exchanges with Ms Wilson reveal that she had concerns with some of the terms of the DOR, these do not rise to establishing a lack of voluntariness or unwillingness in signing the DOR and then the NOD, let alone fraud, mistake or otherwise such as to engage a concern that the NOD was not regularly effected and the proceedings were not regularly discontinued.
167.Although scattered throughout her material to the Court, paragraphs [13] to [14] of Ms Seidler’s affidavit of 21 May 2010 are representative of her claims relating to her emotional and mental state at the material times.
168.This whole area appears to have a number of limbs.
169.First, that the trauma she suffered as a result of the actions of the University and its employees and the AGSM, which led to the HREOC complaint, continued through to the period of the settlement negotiations and then the signing of the HOA and the DOR.
170.Ms Seidler asserts that she had a “mental health complaint” and “capacity limitations”. She saw the actions of both sets of lawyers as abusive because, in spite of this, they continued to “throw cases” on her (see [14] of her affidavit of 21 May 2010).
171.As with much of what Ms Seidler has presented in her written material, it is difficult to discern useful meaning. It may be that this in itself may be said to support her assertion of some mental incapacity.
172.But this was not how she presented before the Court. The emotion was there, although for the most part under tight control. Ms Seidler presented as someone clearly out of her depth (understandably) in presenting legal arguments. There were also limitations in presenting her arguments in a coherent and logical fashion.
173.But even if it is accepted that by the time of the hearing before the Court Ms Seidler: “… had some reduction in confusion and increases in clarity…” (see [14] of her affidavit of 21 May 2010), there is nothing in the material to suggest that the University’s solicitors obtained her signature on the HOA, the DOR or the NOD because of any mental or psychological incapacity on her part, let alone that it involved an element in the fraud, collusion and duress, as she now alleges.
174.That her own solicitors were said to pursue “damages” only for the injuries to her arms (RSI) in the District Court proceedings, and not for some mental stress or incapacity, on its own does not support any allegation of “abuse” or fraud on their part. In advising their clients lawyers are required to make strategic and other decisions of this type daily. Even if there was some mistake on their part (though there is no evidence of this) or even negligence (again, no evidence), this does not amount to fraud.
175.In any event, Ms Seidler reveals an underlying basis for making these allegations now with the words, for example, at the end of [14] of her affidavit of 21 May 2010:
“… I want and need medical at a minimum and some basic living ability. I want a employment.”
176.It is difficult in all the circumstances, and on the material before the Court, not to see Ms Seidler’s allegations as a self-serving explanation for what she has now come to see as a “bad deal” in light of her openly stated financially difficult situation and her perceived employment prospects.
177.A second element in this area is Ms Seidler’s complaint that fraud or other wrongdoing can also be seen because the University’s solicitors issued subpoenas for her medical records. As I understood the complaint, the University’s lawyers acted contrary to “the interests of justice” in issuing subpoenas for her medical documents, and then vigorously pursuing production with her various medical advisers.
178.It is difficult to point to one particular part of the voluminous material she has put before the Court as representative of her complaint in this regard. Nor even to properly articulate the complaint in any relevant legal context.
179.However, from what can be discerned, it must be said that there is some inconsistency in Ms Seidler’s position in this regard. On the one hand, she complains that if the solicitors had had proper regard to her medical records and documents they would have been aware that she was suffering from: “a diagnosed DSM IV Adjustment Disorder” ([31] of her affidavit of 21 May 2010), and therefore deserving of some appropriately commensurate response from them. She variously sees their perceived failure in this regard as an example of harassment. Yet on the other hand, she complains in the same paragraph (and elsewhere) that the solicitors should not have issued subpoenas to access her medical documents, nor to have pressed for them.
180.What must immediately be noted is that Ms Seidler’s original complaint to HREOC (which was the starting point for the proceedings initially before Smith FM, and now in a different form before me) was on the basis, at least in part, of a physical disability.
181.The complaint to HREOC, before the Court as “Attachment B” to her affidavit of 20 February 2008, contains the following:
“Basis of Complaint: I have been discriminated against and treated unfairly by the University of New South Wales because of a physical injury; a potentially permanent disability (Repetitive Strain Injury/Tendonitis, also called Regional Pain Syndrome in my arms, developed whilst at the university)”.
182.Following termination of the HREOC complaint Ms Seidler brought the University and the AGSM to this Court. The respondents plainly did not initiate any such action.
183.The mere fact of her own description of the basis of her complaint, a complaint then brought to the Court, establishes the justification and propriety of the respondents’ solicitors seeking access to all of Ms Seidler’s relevant medical records, not just those selectively relied on by Ms Seidler.
184.It is clear, as Mr Mattson submitted, that the issue of disability was a matter arising in the proceedings. If not the central matter. Ms Seidler commenced proceedings pleading disability discrimination. The respondents denied the existence of any disability. In these circumstances it was appropriate for them to put to the test whether any disability existed, the nature and extent of the disability asserted, and any impact on her studies and employment situation.
185.In any event, and in further answer to this complaint, the issue of the subpoenas, her medical documents, and the access to them, was properly the subject of judicial consideration by Smith FM. Based on evidence provided by the University’s solicitors, on 1 August 2008 his Honour made an order directing that the issue of access be referred to a female registrar to inspect the records and to grant access to the respondents if they were of relevance to this case. (See generally “O” and “P” to the TB and in particular page 113 (Order 8) of the TB.)
186.Certain access was granted by the Registrar after consideration (see “Q” to the TB).
187.What must be borne in mind is that, despite her complaints now, Ms Seidler was legally represented at the relevant time. The matter was the subject of consideration by a judicial officer and a Registrar of this Court. The matter was resolved in the proceedings previously before the Court.
188.This complaint does nothing to indicate, let alone establish, fraud or even some impropriety on the part of the University’s and the AGSM’s solicitors, such that the NOD should be set aside.
189.At [5] of her affidavit of 21 May 2010, and with reference to attachment “D” to the affidavit, Ms Seidler asserts that the “NSW District Court civil registry system” confirms that there was to be “no access” to at least (an unspecified) part of her medical records.
190.The copy of the document at attachment “D” appears to be a computer printout relating to an “Exhibit Enquiry” conducted of the “Civil System”. There is only Ms Seidler’s “evidence” to say that it relates to the District Court proceedings. There is nothing before the Court now to identify this as being a true reflection of the District Court’s records.
191.Nor does the handwritten notation “NO ACCESS”, with an arrow to a section of the document, provide any basis for asserting that certain orders had been made by the District Court.
192.In the absence of any other relevant evidence whatsoever it is difficult, if not impossible, to see how any order made in the District Court (assuming that one was made in the terms asserted by Ms Seidler now), in relation to any subpoena issued in proceedings in that Court, could affect any subpoena issued in this Court and the subsequent action taken by Smith FM and a Registrar of this Court in relation to that subpoena.
193.The references to an entitlement to a “mistrial for breach of confidentiality and no access records” (at [2] of the affidavit of 21 May 2010) can only be seen, in all the circumstances, as an example of hyperbole and the conjuring of a fanciful imagination. What it is not is a basis for setting aside the NOD. This matter says nothing about whether the NOD was regularly or not regularly effected.
194.The last element in relation to this broad complaint is a complaint about the respondents’ solicitors’ correspondence with some of Ms Seidler’s medical practitioners. Again, given the nature of the way Ms Seidler has chosen to present her material to the Court, a convenient example of this complaint, as Mr Mattson in part suggested, is to be found at [19] to [20] and [22] to [23] of Ms Seidler’s affidavit of 15 July 2010.
195.At best, the complaint is that certain of Ms Seidler’s medical practitioners felt harassed by the University’s lawyers in their quest to access her medical records.
196.Part of the difficulty in properly understanding the detail of this complaint, apart from what can be described as the style of presentation adopted by Ms Seidler, is that some of the documents have the addressee “blocked out”, are not complete, or both. (For example, see 3/6, 4/6, 5/6, 6/6 of Annexure “GG” to the affidavit of 15 July 2010).
197.At best, what can be said is that Ms Seidler’s presentation has confused approaches made by GH, the respondents’ solicitors in the personal injury proceedings in the District Court, with approaches made to medical practitioners by BP in the proceedings in this Court.
198.As to those communications, I agree with Mr Mattson that they were appropriate, particularly given the scope of the proceedings covered by Ms Seidler, the references to a proposed amended application which does not appear to have materialised, and the basis of the complaint she made. In the circumstances, the documents set out at “Q” to the TB reveal that this complaint is at best misconceived.
199.The role and conduct of at least one of Ms Seidler’s doctors in relation to the response to the subpoenas appears indicative of how little weight can be placed on communications from at least this medical practitioner.
200.Before the Court Ms Seidler submitted that the conduct of the respondents’ solicitors in pressing for access to her medical records had led to a great deal of “agitation” on her part. She saw this as an unwarranted attack on her privacy, and a part of the undue pressure and duress she felt from the respondents.
201.In this regard, Ms Seidler referred the Court to the letter of 26 May 2009 from one of her medical practitioners (Annexure “EE” to her affidavit of 30 July 2010). The submission was that this letter “evidenced” her high level of agitation as a result of the conduct of the University’s solicitors.
202.This letter was the subject of objection from the respondents in being allowed into evidence. I upheld the objection as the letter was plainly hearsay and formed an opinion outside the doctor’s purported area of expertise.
203.Nonetheless, in the interests of giving an unrepresented applicant every opportunity before the Court, I considered this complaint and treated the material in support in the nature of “submissions”. Ultimately, it does not assist Ms Seidler, even if I had admitted this material into evidence.
204.This annexure was referred to at [48] of her affidavit of 30 July 2010. What she says in her affidavit is that the letter is “confirmation” by the doctor of: “… part of the conduct he and I experienced at the practice due to repeated legal contact for my medical information…”.
205.A number of matters are of note. First, the letter is addressed personally to Smith FM, and is signed by the doctor. Why the doctor felt compelled to engage in the unusual course of writing directly to the judicial officer, and not adopting the more usual approach of giving evidence, at least initially by way of affidavit, is at first unclear. (The orders made by Smith FM on 14 March 2008 included that evidence was to be provided by way of affidavit.)
206.Second, it is clear that the author of the letter confused subpoenas from BP in the disability discrimination case before Smith FM, with those arising from the personal injury case before the District Court.
207.Third, the author of the letter appears not to have understood that the scope of subpoenas are matters for the Court, and not for the “opinion” of medical practitioners as to their perceived inadequacy or deficiency.
208.What was of note, however, was that the letter made no reference to Ms Seidler’s agitation. The letter speaks only of the “significant agitation” to the doctor’s practice.
209.When I sought clarification from Ms Seidler at the hearing before the Court, she submitted that she had “co-authored” the letter. This was consistent with the use of the phrase “… and her legal…” as a reference to firms of solicitors. A linguistic peculiarity that littered Ms Seidler’s documentation before the Court as well as her oral submissions. [“The legal” referred to the various lawyers; doctors and other health care professionals were referred to as “the medical”.]
210.If this letter also stands as representative of other letters from this doctor in the large bundle of documents Ms Seidler has put before the Court, then it says more about the lack of integrity and professionalism of the doctor than it says about the University’s lawyers. [See also Annexure “EX” to the affidavit of 30 July 2010, said to be authored by the same doctor.]
211.I should just note that letters from a variety of other medical practitioners to which Ms Seidler specifically referred the Court at the hearing (Annexures “EX”, “AX”, “BX”, “CX”, “DX”, “FX” of the affidavit of 30 July 2010 and Annexure “A” to the affidavit of 21 May 2010) were all determined to be not relevant to the issue before the Court.
212.Finally, Ms Seidler also proffered the letter of 26 May 2009 as support for the proposition that the respondents’ solicitors had otherwise acted “improperly” in not serving her with copies of the subpoenas. The letter, which on its face is said to be fully authored by the doctor, makes reference to his providing Ms Seidler with the relevant copies, and that they were not provided by the respondents’ solicitors.
213.It is not clear whether the letter seeks to impugn either BP, GH, or both. In any event, what is clear is that Ms Seidler was represented by lawyers in both sets of litigation at that time. There is nothing before the Court to show that the subpoenas were not served on her solicitors as would have been the usual course.
Affidavit of Applicant made on and filed on 3 September 2010
| Paragraph | Respondent’s Objection | Applicant’s Response to the Objection | Ruling - Evidence Act 1995 (Cth)/Case Law | Relevant | Provisionally Relevant | Admit as Evidence |
| 1 and Annexure “XX” | Relevance. Annexure “XX” has already been ruled inadmissible. | Relevance - ss.55-56. Objection upheld, therefore not admitted. | - | - | - | |
| 2 | Relevance. | Relevance - ss.55-56. TPA is not relevant to these proceedings. Objection upheld, therefore not admitted. | - | - | - | |
| 3 | Relevance. Opinion. Submission. | Relevance - ss.55-56. First and second sentences are not relevant. Objection upheld, therefore not admitted. Remainder of paragraph is submission and opinion (therefore the remainder of paragraph is to be treated as written submissions). | - | - | - | |
| 4 | Relevance. Paragraph is not permissible per s.46PO(3) of the AHRC Act - regarding the additional ground relating to TPA. | Argument. | Relevance - ss.55-56. s.46PO(3) of the AHRC Act. Objection upheld, therefore not admitted. | - | - | - |
| 5 | Relevance. | Relevance - ss.55-56. Objection upheld, therefore not admitted. | - | - | - | |
| 6 | Relevance. Submission. | Relevance - ss.55-56. Objection upheld, therefore not admitted (however to be treated as written submission). | - | - | - | |
| 7 | Relevance. Paragraph is not permissible per s.46PO(3) of the AHRC Act - regarding the additional ground relating to TPA. | Relevance - ss.55-56. s.46PO(3) of the AHRC Act. Objection upheld, therefore not admitted. | - | - | - | |
| 8 | Relevance. Submission. | Relevance - ss.55-56. Submission, therefore not admitted (to be treated as submission). | - | - | - | |
| 9 | Relevance. Submission. | Relevance - ss.55-56. Not relevant. Not evidence, therefore not admitted. | - | - | - | |
| 10 | Relevance. Submission. Not evidence. | Relevance - ss.55-56. Objection upheld, therefore not admitted (however to be treated as written submission). | - | - | - | |
| 11 | Relevance. Submission. | Relevance - ss.55-56. Objection upheld, therefore not admitted (however to be treated as written submission). | - | - | - | |
| 12 | Relevance. Submission. Not evidence. | Relevance - ss.55-56. Argument, not evidence, therefore not admitted (however to be treated as written submission). | - | - | - | |
| 13 | Relevance. | Submissions. | Relevance - ss.55-56. Submissions, therefore not admitted (however to be treated as written submission). | - | - | - |
| 14 | Relevance. Paragraph is not permissible per s.46PO(3) of the AHRC Act - regarding the additional ground relating to the TPA. | Relevant to the TPA, but also breach of confidentiality leading to the DOR. | Relevance - ss.55-56. s.46PO(3) to the AHRC Act. Assertion, not evidence, therefore not admitted. | - | - | - |
| 15 | Relevance. Incomprehensible. | Relevance - ss.55-56. Incomprehensible – s.135(b). Submission, therefore not admitted (however, to be treated as written submissions). To extent the paragraph relates to the TPA, not relevant. | - | - | - | |
| 16 | Relevance. Paragraph is not permissible per s.46PO(3) of the AHRC Act - regarding the additional ground relating to the TPA. | Relevance - ss.55-56. s.46PO(3) to the AHRC Act. Objection upheld, therefore not admitted. | - | - | - | |
| 17 | Incomprehensible. Submission. | Incomprehensible – s.135(b). Assertion, not evidence, therefore not admitted. | - | - | - | |
| 18 | Submission. Not evidence. | Paragraph is submission, therefore not evidence. Objection is upheld. However, will treat the submission relating to the DDA as written submission. | - | - | - | |
| 19 | Submission. Not evidence. | Objection upheld, therefore not admitted (however to be treated as written submission). | - | - | - | |
| 20 | Submission. Not evidence. | Objection upheld, therefore not admitted (however to be treated as written submission). | - | - | - | |
| 21 | Relevance. | Relevance - ss.55-56 Submission, therefore not admitted (however to be treated as written submission). | - | - | - | |
| 22 | Not evidence. | At best an allegation, not evidence, therefore not admitted. | - | - | - | |
| 23 | Not evidence. | Objection upheld, therefore not admitted. | - | - | - | |
| 24-25 | Not evidence. | Seeking orders, not evidence. Objection upheld, therefore not admitted. | - | - | - | |
| 26 | Not evidence. | Not sure whether will be making a Victim Impact Statement. | An intention to provide evidence is not evidence for the purpose of admissibility, therefore not admitted. | - | - | - |
| 27 | Not evidence. | Objection upheld, therefore not admitted. | - | - | - | |
| 28 | Relevance. | Relevance - ss.55-56. Objection upheld, therefore not admitted. | - | - | - | |
| 29 and Annexure “YY” and “ZZ” | Relevance. Paragraph is not permissible per s.46PO(3) of the AHRC Act - regarding the additional ground relating to the TPA. No objection to documents being provisionally admitted. | Relevance - ss.55-56. s.46PO(3) to the AHRC Act is applicable. Argument and submission in relation to the TPA are not relevant. Annexures “YY” and “ZZ” are provisionally admitted. | - | ü | ü | |
| 30 | Relevance. Paragraph is not permissible per s.46PO(3) of the AHRC Act - regarding the additional ground relating to the TPA. | Relevance - ss.55-56. s.46PO(3) of the AHRC Act is applicable. Objection upheld, therefore not admitted. | - | - | - | |
| 31 | Relevance. Submission. | Relevance - ss.55-56. Objection upheld, therefore not admitted. | - | - | - | |
| 32 | Submission. Not evidence. | Not evidence. Objection upheld, therefore not admitted (however to be treated as written submission). | - | - | - | |
| 33 and Annexure “SS” | Relevance. Paragraph is not permissible per s.46PO(3) of the AHRC Act - regarding the additional ground relating to the TPA. | Relevance - ss.55-56. s.46PO(3) of the AHRC Act. To the extent that reference is made to the TPA, this is not relevant. Remainder of the paragraph is submission. Annexure “SS” is already admitted as part of the DOR which is part of the TB. | - | - | - | |
| 34 | Incomprehensible. Submission. Not evidence. | Incomprehensible – s.135. Documents referred to in the paragraph are already admitted. Paragraph is not evidence, therefore not admitted. | - | - | - | |
| 35 - 36 | Relevance. | Relevance - ss.55-56. Objection upheld, therefore not admitted. | - | - | - | |
| 37 | Relevance. Paragraph is not permissible per s.46PO(3) of the AHRC Act - regarding the additional ground relating to the TPA. | Relevance - ss.55-56. s.46PO(3) of the AHRC Act. Objection upheld, therefore not admitted. | - | - | - | |
| 38 - 39 | Relevance. Paragraph is not permissible per s.46PO(3) of the AHRC Act - regarding the additional ground relating to the TPA. | Relevance - ss.55-56. s.46PO(3) of the AHRC Act. Objection upheld, therefore not admitted. | - | - | - | |
| 40 | Relevance. | Relevance - ss.55-56. Submissions, therefore not admitted (to be treated as submission). | - | - | - | |
| 41-42 | Relevance. | Relevance - ss.55-56. Objection upheld, therefore not admitted. | - | - | - | |
| 43 | Submission. | At best submission, therefore not admitted (however to be treated as written submission). | - | - | - | |
| 44 | Submission. | Objection upheld, therefore not admitted (however to be treated as written submission). | - | - | - | |
| 45 | Submission. Not evidence. | Paragraph deals with amendment to the applicant’s substantive application. Paragraph noted as being argument (however to be treated as written submission). | - | - | - | |
| 46 | Not evidence. | Objection upheld, therefore not admitted. | - | - | - | |
| 47 | Relevance. Not evidence. | Relevance - ss.55-56. Objection upheld, therefore not admitted. | - | - | - | |
| 48 | Submission. | At best submission, therefore not admitted (however to be treated as written submission). | - | - | - | |
| 49-62 | Submission. Not evidence. | Submissions in reply. Will be taken as written submissions in reply to the respondent’s evidence. | - | - | - | |
| 63 | Not evidence. | Submissions, therefore not admitted (to be treated as submission). | - | - | - | |
| 64 | Not evidence. | To the extent that the paragraph relates to the TPA, not relevant. From “… they have also admitted” to “… my consent” are submissions in reply. The remainder is not relevant, therefore not admitted. | - | - | - | |
| 65-69 | Relevance. Submission. | Relevance - ss.55-56. Submissions in reply, therefore not admitted (to be treated as submission). | - | - | - | |
| 70 | Submission. | Responding to “O” of the TB. | Not relevant to a fact in issue. To be treated as written submissions in reply, therefore not admitted. | - | - | - |
| 71 | Submission. | Responding to “O” of the TB. | Objection upheld, therefore not admitted (however to be treated as written submission). | - | - | - |
| 72 | Submission. Relevance, as not before the Workers Compensation Commission. | Paragraph goes towards ergonomic issues. | Relevance - ss.55-56. Anything related to Workers Compensation is not relevant, therefore not admitted. The remainder is to be treated as written submissions. | - | - | - |
| 73 | Relevance. Submission. | Relevance - ss.55-56. At best is a submission, therefore not admitted. | - | - | - | |
| 74 | Not evidence. Submission. | At best a submission, not evidence, therefore not admitted. | - | - | - | |
| 75 | Not evidence. | At best a submission, therefore not admitted. | - | - | - | |
| 76 | Submission or conclusion. | Objection upheld, therefore not admitted (however to be treated as a written submission). | - | - | - | |
| 77 | Submission. Relates to “EE” of TB (a letter from MBBF) which makes the paragraph comprehensible. | Objection upheld, therefore not admitted (however to be treated as a written submission). “EE” admitted into evidence. | ü | - | ü | |
| 78 | Submission. | Objection upheld, therefore not admitted. | - | - | - | |
| 79 and Annexure “TT” | Submission. No objection to Annexure “TT’ being admitted, however, objection to the description provided in the affidavit. Object to table and commentary provided in [79] as it is all submission rather than evidence. However no objection to Documents “A”-“N”, noting that: “A” and “B”, which is located at “DD” of the TB (the three documents need to be admitted together). Document “C” is part of an email chain, the second page of “C” is part of a draft of document “D”. However do not object to it being admitted. No objection to document “D” being admitted, noting however that it is an incomplete copy. No objection to documents “E” and “F” being admitted. Document “G” is an incomplete email and attachment. “HH” of the TB is the complete document. If document “G” is to be admitted then “HH” should also be admitted. No objection to documents “H”-“N”, save that any hand written commentary located on the documents not be admitted. | More concerned with chronology. | Paragraph is inadmissible as it is submissions. Annexure “TT” is admitted. “DD” from the TB and Documents “A” and “B” are admitted. Document “C” is admitted, subject to what may further be said about it. Documents “D”, “E” and “F” are admitted. Document “G” and “HH” from the TB are admitted. Documents “H”-“N” are admitted, excluding any amendments that appear on the documents. | ü | - | ü Annexure “TT” is admitted. “DD” from the TB and Documents “A” and “B” are admitted. Document “C” is admitted, subject to what may further be said about it. Documents “D”, “E” and “F” are admitted. Document “G” and “HH” from the TB are admitted. Documents “H”-“N” are admitted, excluding any amendments that appear on the documents. |
| 80 | Not evidence. Submission. | Objection upheld, therefore not admitted. | - | - | - | |
| 81 | Not evidence. No objection to “V” of the TB being admitted in order to give comprehension to the paragraph. | Referring to “V” and “FF” of the TB. | Objection upheld. The “confidential” reference does not mean that the document cannot be seen by the applicant. This term merely ensures that correspondence is received by the appropriate persons. The paragraph is not comprehensible on its own. As there is no objection, “V” of the TB is admitted. Document “FF” of the TB is also admitted. | - | - | ü Documents “V” and “FF” of the TB are admitted. |
| 82 | Not evidence. Submission. | Incomprehensible, therefore not admitted. | - | - | - | |
| 83 | Not evidence. Submission. | To be considered as written submissions in reply to the respondent’s submissions, therefore not admitted. | - | - | - | |
| 84 | Not evidence. Submission. | Objection upheld, therefore not admitted. However, to be considered as written submissions in reply to the respondent’s submissions, other than references made to the TPA. | - | - | - | |
| 85 and Annexure “UU” | Submissions. No objection to Annexure being admitted provisionally. | Annexure “UU” is provisionally admitted, excising the handwritten notations. Objection upheld on the paragraph, therefore not admitted. | - | ü | ü | |
| 86 and Annexure “BB” and “Z” | Not evidence. | Objection upheld on the paragraph, therefore not admitted. Annexure “BB” and “Z” to be admitted from the TB. | ü | - | ü | |
| 87 and Annexure “CC” | Not evidence. | Objection upheld on the paragraph, therefore not admitted. Annexure “CC” to be admitted from the TB. | ü | - | ü | |
| 88 and Annexure “EE” | Submission. | Objection upheld on the paragraph, therefore not admitted (however to be treated as written submission). Annexure has already been admitted. | - | - | - | |
| 89 and Annexure “FF” | Submission. | Objection upheld on the paragraph, therefore not admitted (however to be treated as written submission). Annexure has already been admitted. | - | - | - | |
| 90 and Annexure “II” | Not evidence. | Objection upheld on the paragraph, therefore not admitted. Annexure has already been admitted. | - | - | - | |
| 91 and Annexure “MM” | Not evidence. Annexure “MM” is on the Court file. | Object to having this document in open access. It is Court correspondence. No reason to make this evidence. | Correspondence is not evidence. Paragraph is an application that the document not be released. Noting that if “MM” is not in evidence then the Court cannot make an order about it. Can address this when it comes to the question of making orders in relation to suppression. It may be that the Court can not make the order if the document has already been ruled inadmissible. Paragraph and Annexure “MM” not admitted into evidence. | - | - | - |
| 92 and Annexure “OO” | Not evidence. | Objection upheld, therefore not admitted. | - | - | - | |
| 93-95 | Submission. | Objection upheld, therefore not admitted (however to be treated as written submission). | - | - | - | |
| 96 | Submission. | Not evidence, therefore not admitted (however to be treated as written submission). | - | - | - | |
| 97-98 | Submission. Not evidence. | Argument, not evidence, therefore not admitted (however to be treated as written submission). | - | - | - | |
| 99 | Not evidence. | Objection upheld, therefore not admitted. | - | - | - | |
| 100 | Not evidence. Submissions. | At best a submission. Not relevant to a fact in issue, therefore not admitted. | - | - | - | |
| 101-102 | Not evidence. | Objection upheld, therefore not admitted. | - | - | - | |
| 103 | Submissions. | Not evidence, therefore not admitted (however to be treated as written submission). | - | - | - |
Tender Bundle
| Document | Respondent’s Response to the Objection | Applicant’s Objection | Ruling - Evidence Act 1995 (Cth)/Case Law | Relevant | Provisionally Relevant | Admit as Evidence |
| “A” and “B” | Documents are before the Court and are already admitted. | - | ü | ü | ||
| “C” and “D” | Documents are already on the Court file. | - | ü | ü | ||
| “M” and “N” | Object on the ground that the applicant had not seen the documents before. | Regardless of whether the applicant had or had not seen the documents before the hearing is irrelevant to whether the documents are relevant to proceedings. | - | ü | ü | |
| “CC” | Document is incomplete | Already admitted as part of [87] of Affidavit dated 3 September 2010. | - | ü | ü | |
| “GG” | Already part of applicant’s evidence. | - | ü | ü | ||
| “JJ” | NOD must be before the Court. | Document can be admitted by either admitting the original on the file, or by admitting the copy on the file, so long as the copy is an exact, true copy. | ü | - | ü | |
| “KK” | Gives context to the order of Smith FM made on 12 February 2009. This document is in any event annexed to the DOR. Order was never made by Smith FM because the matter had already been discontinued. | Relevant, therefore admitted. | ü | - | ü | |
| “LL” | Orders of Smith FM are relevant and therefore admitted. | ü | - | ü | ||
| “MM” | Need to understand why “NN” is in existence (why the orders of 20 February 2009 were made). | Applicant required to explain what appears at “NN”. Orders of the Court in relation to these proceedings, given the nature of the current application, must be relevant. If the order is relevant then the “approach” to make the order is also relevant. | ü | - | ü | |
| “NN” | “MM’ has been admitted. | Relevant, therefore admitted. | ü | - | ü | |
| “OO”/”PP” | Not relevant to these proceedings. | Not admitted. | - | - | - | |
| Remainder of the TB | Remainder of the documents in the TB have already been admitted. | Admitted. | ü | - | ü |
Additional Documents provided to the Court by the Applicant on 16 September 2010.
| Document | Respondent’s Objection | Applicant’s Response to the Objection | Ruling - Evidence Act 1995 (Cth)/Case Law | Relevant | Provisionally Relevant | Admit as Evidence |
| 1 | Cannot see how the document assists any argument before the Court. The applicant’s osteopath sent the letter to the respondent’s lawyers, who immediately returned it to the osteopath without reading it. However, no objection to the document being provisionally admitted. | Communication with the applicant’s osteopath, giving context to the settlement. | Goes to the issue of what the applicant’s allegations were about the conduct of her own legal representatives. Provisionally admitted. | - | ü | ü |
| 2 | Document held over until it could be cross-referenced to a document already admitted. This document could not be found. | - | - | - | ||
| 3 | Annexure “GG” to affidavit made on 15 July 2010 (sixth document). | Provisionally admitted. | - | ü | ü | |
| 4 | Letter from GH lawyers to a doctor. A new letter, part of a chain. GH were representing the first respondent in the District Court proceedings. Annexure “GG” to affidavit made on 15 July 2010 (first document). | Provisionally admitted. | - | ü | ü | |
| 5 | Letter from GH to applicant’s lawyers. Part of chain of correspondence. | Provisionally admitted. | - | ü | ü | |
| 6 | File note. Applicant asserted the file note was written and provided by Jamie Ling at GH. | Document is incomplete and illegible. Undated file notes, without any evidence to support them, are difficult to admit. Concerns over the document stem from the fact that it is an unidentified document, therefore not admitted. | - | - | - | |
| 7 | Note the document is a new document, and cannot conceive its relevance. Nor does it assist the Court. | New document in the chain of consequences. | Document is not attached to any evidence indicating its provenance or relevance. In the absence of any evidence to which relevance can be attached, it must be excluded. | - | - | - |
| 8 | Hand written note, authorship unknown, therefore not admitted. | - | - | - | ||
| 9 | This document was deemed not relevant and therefore not admitted. | Doctor’s letter to the District Court. Annexure “GG” to affidavit made on 15 July 2010 (fourth document). | Objection upheld, therefore not admitted. | - | - | - |
| 10 | Hand written note, authorship unknown, therefore not admitted. | - | - | - | ||
| 11 | Table from GH confirming service of a doctor’s report. | Authorship unknown, therefore not admitted. | - | - | - |
7
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