1st Available v Melocco

The contempt proceedings

1. On 3 April 2014, Ms Melocco sent an email to Mr Jacobs to which was attached a volume of documentation. This material relates to a complaint she had made to the Australian Human Rights Commission concerning her treatment by the plaintiffs, that is, by 1st Available and, in particular, by Mr Bartosch. The complaint made allegations about the course of her employment and the circumstances surrounding its termination. The complaint alleged unlawful discrimination under the Disability Discrimination Act 1992 (Cth) and, pursuant to a relevant provision of that Act, the Commission terminated the complaint on the basis that there was no reasonable prospect of the matter being settled by conciliation.
2. The material communicated to Mr Jacobs is reproduced in an exhibit to an affidavit of the plaintiffs' solicitor, Mr Alistair McKeough, of 15 April 2014: exhibit "AGM-2" at pp 287-334. The email is at pp 287-289. The Human Rights Commission's notice of termination of the complaint is at p 294. Annexed to that notice as attachment A are the Commission's reasons for its decision: pp 295-6, and as attachment B Ms Melocco's complaint: p 297ff. The narration of Ms Melocco's complaint is at pp 297-304, and she attached a number of documents to it, reproduced at pp 305-334. For present purposes it is the email (pp 287-289) and the narrative complaint (pp 297-304) which are relevant.
3. It is the plaintiffs' case that by this communication Ms Melocco was in breach of her undertaking to the Court in respect of 9 of the 35 representations to which I have referred. By a notice of motion of 17 April 2014, the plaintiffs sought a declaration that she was in contempt of Court for failing to comply with her undertaking in those respects, an order that she be punished for contempt, and an order that she pay the plaintiffs' costs of the motion on an indemnity basis.
4. Annexed to the motion is a statement of charge setting out the undertaking and the 35 representations, the alleged breaches and particulars of them. To understand the representations and the breaches alleged it is necessary to reproduce the whole of that document, which I have done as an attachment to this judgment marked "A".
5. In par 5(a)(i) and (ii) of the statement of charge the reference in square brackets to "the letter" should presumably be "the email." No point was taken about this.
6. It will be seen that in a large number of the 35 representations, set out at par 2, the term "plaintiff" is used when, plainly enough, the person intended to be referred to was the defendant, Ms Melocco. This appears in 21 of the representations, in which the word "plaintiff" or "plaintiff's" are used: those numbered 3, 4, 5, 6, 10, 11, 13, 14, 15, 16, 17, 19, 21, 22, 23, 24, 28, 30, 31, 32, 33. This is how the representations appeared in the attachment to the consent orders forwarded to the registrar on 17 March 2014. The effect of the evidence of Mr McKeough is that this was an error in the preparation of the document at his office.
7. The letter to Ms Melocco of 26 February 2014 setting out the 35 representations and seeking her undertaking in respect of them, to which I have referred, used the personal pronouns "you" or "yours" in those representations, rather than referring to Ms Melocco by her status as the defendant in the proceedings. It seems that in preparing the attachment to the consent orders those personal pronouns were erroneously replaced by reference to the "plaintiff" instead of the "defendant". Mr McKeough became aware of the error in the course of preparation of the deed of settlement to which I have referred, to which the undertakings were to be attached. In that attachment the error was corrected.
8. This matter led to the filing by the plaintiffs of an amended notice of motion on 10 October 2014, in which appropriate amendments, pursuant to UCPR r 36.17, the "slip" rule, are sought to be made to the consent orders of 20 March. These amendments are opposed.

Amendment

1. Amendments are sought to representations 10, 11 and 13 whereby the word "plaintiff" is replaced by "defendant", and in representations 10 and 11 the word "plaintiff's" is replaced by "defendant's". The alleged breaches of Ms Melocco's undertaking in respect of those representations are set out at par 5(d), (e) and (g) of the statement of charge.
2. Before me Ms Melocco was represented by Mr Conomy, solicitor, assisted by Mr Laxon, solicitor. Their fundamental objection to the amendments, in written submissions by Mr Laxon developed orally by Mr Conomy, was that the errors in the wording of a large number of the representations meant that the contempt proceedings are fatally flawed. Reference was made to the statement by Gillard J of the essential requirements to establish a civil contempt of court involving a breach of a court order in National Australia Bank (NAB) Limited v Juric [2001] VSC 375 at [37]: "1. That an order was made by a court. 2. That the terms of the order are clear, unambiguous and capable of compliance. 3. That the order was served on the alleged contemnor … . 4. That the alleged contemnor has knowledge of the terms of the order. 5. That the alleged contemnor has breached the terms of the order." This formulation was cited with approval by White J in Wyszynski v Bill [2005] NSWSC 110 at [58]. Of course, those requirements apply to the undertaking in the present case.
3. In Mr Laxon's written submissions it was argued that the misdescription of Ms Melocco in 21 of the representations renders them "a nonsense", so that the undertaking fails to meet the second of the requirements set out by Gillard J: that its terms be "clear, unambiguous and capable of compliance." Even if this were not so of the undertaking as a whole, it was argued, it certainly would be in relation to representations 10, 11 and 13. It would clearly be unjust to Ms Melocco, it was argued, to allow the amendments at this late stage after the commencement of the contempt proceedings. The submissions also questioned the utility of the amendments, given the provisions of the settlement deed regulating Ms Melocco's conduct in respect of the representations (correctly expressed), but I shall deal with the deed as a separate issue.
4. The plaintiffs were represented by Mr Blackburn SC with Mr Dawson. In written submissions they referred to authority for the proposition that extrinsic evidence may be used to construe an undertaking, at least where it is ambiguous. In S & M Motor Repairs v Caltex Oil (1988) 12 NSWLR 358, a case concerned with the breach of an undertaking, Priestley and Clarke JJA referred in the context of the case to "the importance of construing the undertaking in the factual matrix which was known to both parties" (at 387).
5. In Athens v Randwick City Council [2005] NSWCA 317, 64 NSWLR 58, a case dealing with the breach of an order, Hodgson JA (Santow and Tobias JJA agreeing) said at [27] ff (69-71): "27 The construction of an order in respect of which a finding of contempt is sought may involve two inter-related questions. First, what does the order require, on its true construction? And second, is this sufficiently clear to the person affected by the order to support enforcement of that order against that person? 28 … There is no doubt that, in addressing the first question, one can consider context in the case of consent orders, in much the same way as one can consider context in construing a contract: … . … 31 Because the matter under consideration here is the question of contempt by breach of the order, it is necessary also to consider the second question I identified. I accept the general principle that, to be enforceable, an order must be so expressed that the person affected knows, or plainly should know, what he or she is required to do or refrain from doing. 32 However, in my opinion, in determining whether an order is so expressed, it is not appropriate to close one's mind altogether to context. For example, if an order refers to a named person or a named address, and it so happens that there are a number of persons with that name or a number of places with that address, the order will be sufficiently clear if the circumstances of the case, well known to the person affected by the order, make it clear which person or which place is being referred to: … ."
6. In the course of that part of his judgment Hodgson JA cited with approval the judgment of Campbell J in Kirkpatrick v Kotis [2004] NSWSC 1265, 62 NSWLR 567, a case dealing with contempt by disobedience of consent orders. Campbell J said at [45] (575): " … authority and principle both favour the view that surrounding circumstances can be used to construe a consent order. The type of surrounding circumstances which can be used are those which can be used to construe a contract, in accordance with the principles laid down by Mason J in Codelfa Construction Proprietary Limited v State Rail Authority of New South Wales (1982) 149 CLR 337 at 352." Later his Honour said at [57] (579): "In the case of consent orders, where surrounding circumstances can be used as an aid to construction, those surrounding circumstances can have the effect that an order which is ambiguous, considered in isolation, is found to be not ambiguous when read in light of the surrounding circumstances. As the surrounding circumstances that are taken into account are facts known to all parties to the consent order, they are the very thing that a person trying to understand and obey the order would take into account. Hence it is appropriate that any question of whether the order is ambiguous should be answered only after such facts have been taken into account."
7. White J also referred to Kirkpatrick v Kotis in Wyszynski v Bill (supra), noting at [30] that the principles enunciated by Campbell J apply to "orders of the Court as they do to undertakings given to the Court."
8. Counsel submitted that it was apparent from the surrounding circumstances that the person referred to as the "plaintiff" in the 21 representations, particularly the 10th, 11th and 13th of them the subject of the present proceedings, was intended to be Ms Melocco. In their written submissions they argued that the use of the term "plaintiff" was "manifestly erroneous", such that the asserted representations made no sense unless Ms Melocco was understood to have been the person responsible for them.
9. Reliance was placed upon the letter to her of 26 February 2014, in which the pronouns "you" and "yours" referred unambiguously to her. The ensuing correspondence between the solicitors was directed to the terms of that letter. In an affidavit of 8 October 2014, filed for the purpose of these proceedings, Ms Melocco deposed that she instructed her solicitor to give the undertakings that had been demanded of her in the 26 February letter, adding that she felt that she had no choice but to do so in the light of the threatened injunction proceedings and against the background of other matters asserted in the affidavit. She does not suggest in the affidavit that she was under any misapprehension as to the effect of the undertaking.
10. Moreover, counsel pointed out that at an early stage of the proceedings Ms Melocco had consented to an order by Hallen J restraining her from making certain representations pleaded in the original statement of claim pending mediation (which, in the event, failed to resolve the matter). Thus she was no stranger to the obligation imposed upon her by the present undertaking.
11. Views might vary as to whether the error in the relevant representations amounts to an ambiguity. In B & B Constructions (Aust) Pty Ltd v Brian A Cheeseman & Associates Pty Ltd (1994) 35 NSWLR 227, a case involving the issue of the reception of extrinsic evidence in construing a commercial contract, Kirby P observed (at 234) that the "perception of ambiguity differs from one judicial eye to the other."
12. In the present case counsel relied on extrinsic evidence - the background of the proceedings and the correspondence leading to the consent orders of 20 March - in support of the construction of the representations for which they contended and the application for amendment. The written submissions, developed orally by Mr Blackburn, cited the judgment of Campbell JA (with whom Handley AJA agreed) in AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81, 78 NSWLR 302, a case involving the review of an administrative decision, in which his Honour said at [98] (322): "The preferable view of the law is that an order of an administrative tribunal, like an order of the court, can be construed in the light of the circumstances surrounding the making of the order, regardless of whether there is any ambiguity in the words of the order itself."
13. In oral argument Mr Blackburn referred to Wende v Horwath (NSW) Pty Limited [2014] NSWCA 170, in which Basten JA (with whom Beazley P agreed) addressed the principles applicable to the construction of the order of a magistrate, noting the reference to Codelfa (supra) in authorities on this issue. His Honour continued at [64] : "64 The reference to Codelfa draws on principles relevant to construing commercial contracts. It may therefore be appropriate to construe orders of a court according to a broad approach now adopted with respect to the construction of commercial contracts, without reference to the need for ambiguity: Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7 at [35] (French CJ, Hayne, Crennan and Kiefel JJ). As in this case, ambiguity may be latent in the sense that it is only revealed by reading a passage in its context. However, if references to the need for ambiguity are no more than a rejection of reliance on extraneous material to depart from a plain meaning, little may turn on this point." I shall revisit this line of authority when dealing with the settlement deed.
14. I am satisfied that the submissions of counsel for the plaintiffs should be accepted. Whether or not the erroneous reference to the "plaintiff" in the representations be classified as an ambiguity, it is appropriate to have regard to the background and, in particular, the correspondence leading to the consent orders of 20 March. It is clear that the person referred to as the "plaintiff" is Ms Melocco, and it is equally clear from the correspondence and from her affidavit that she gave the undertaking understanding that it was she who was said to have conveyed the representations. The use of the word "plaintiff" is a patent error, susceptible of correction by the slip rule. In the circumstances no injustice would be occasioned to Ms Melocco by allowing the amendments sought, and I shall do so.

Email and attachment

1. The material upon which contempt proceedings are based is described in par 4 of the statement of charge as the email of 3 April 2014, together with the "attachment constituting correspondence from the Australian Human Rights Commission to the defendant dated 1 April 2014." In Mr Laxon's written submissions, developed orally by Mr Conomy, it was acknowledged that the "email" is the document reproduced at pp 287-289 of exhibit AGM 2, but it was argued that the "attachment" was confined to the Human Rights Commission's reasons for terminating Ms Melocco's complaint, reproduced at pp 295-296. Thus, it was submitted, it was not open to the plaintiffs to rely upon anything in Ms Melocco's complaint to the Commission, reproduced at p 297 ff of the exhibit, which is the source of much of the material relied upon. Indeed, at the hearing of the motion Mr Conomy objected to the admission into evidence of that material.
2. The argument is without substance, and I allowed the material into evidence. As I have said, the "attachment" referred to in par 4 of the statement of charge is said to constitute the correspondence from the Human Rights Commission to the defendant dated 1 April 2014. It begins with the notice of termination, dated 1 April, to which is expressed to be annexed the reasons for the Commission's decision (attachment A) and a copy of Ms Melocco's complaint (attachment B). Plainly enough, all that material constitutes the "correspondence" for the purpose of par 4, embraced by the expression "the attachment" in that paragraph.

The settlement

1. I turn, then, to the settlement of the 2013 proceedings to which I have referred at [6] above. It was contended on behalf of Ms Melocco that the settlement deed terminated the entire proceedings, including these contempt proceedings. Counsel for the plaintiffs maintained that it does not extend to the contempt proceedings, which remain to be dealt with. It is necessary, firstly, to examine relevant provisions of the deed. It is described as a deed of release, and it was executed by the plaintiffs on 28 August 2014 and by Ms Melocco on 9 September 2014.
2. Attached to the deed is a form of consent orders by which the claims in the further amended statement of claim of 16 May 2014 are dismissed and certain costs orders are made. Included in the representations pleaded in the further amended statement of claim were the 35 representations the subject of the contempt proceedings. All the representations in that statement of claim are defined in cl 1.1 of the deed as the "Representations." Noted in the consent orders is an undertaking to the Court by Ms Melocco in identical terms to that of 17 March 2014, referring to the 35 representations which are also attached and in which the erroneous references to the "plaintiff" have been corrected. That undertaking is defined in cl 1.1 as the "Undertakings."
3. In Recitals to the deed it is recorded that the parties have agreed to settle the 2013 proceedings on the terms and additions set out in the deed without any admission by any of the parties; and that the plaintiffs, without admission, acknowledge that Ms Melocco "was genuinely distressed at times in connection with her involvement" with 1st Available and Mr Bartosch.
4. By cl 2.1(a) of the deed Ms Melocco agrees, upon its execution and delivery, to give the Undertakings. Clause 3.1(a) provides that, upon entry into the deed, the plaintiffs release Ms Melocco from all claims relating to the Representations. However, cl 3.2 provides that that release does not affect the ability of the plaintiffs to enforce the deed or the Undertakings. The word "claims" is very widely defined in cl 1.1.
5. Clause 7.1 provides: "1st Available and Bartosch each acknowledge that: (a) they have no further entitlement by reason of the Representations, the Recitals, or any matter incidental to the Representations; and (b) Melocco may plead this deed as a bar to the Proceedings or any other proceedings brought by 1st Available or Bartosch with respect to the Representations, the Recitals, or any matter incidental to the Representations, except in relation to any claim by 1st Available or Bartosch to enforce or in respect of breach of the Undertakings."
6. Clause 8.2 provides: "This deed contains the entire understanding between the Parties in relation to its subject matter. There are no express or implied conditions, warranties, promises, representations or obligations, written or oral, in relation to this deed other than those expressly stated in it or necessarily implied by law."
7. The consent orders were filed with the registry online on 8 October 2014 (and, I take it, were entered by virtue of UCPR r 36.11(1)).
8. In Mr Laxon's written submissions reliance was placed upon the plenary terms of the deed, and the fact that it required a fresh undertaking by Ms Melocco in relation to the 35 representations, to support the argument that the intent of the deed was to put an end to the entire proceedings. The consent orders of 17 March 2014 were characterised as a contract between the parties which was varied by the deed. Reference was made to a passage from the judgment in Gilbert v Gilbert [1955] St R Qd 245 at 254, a decision of Townley J dealing with a financial agreement in a divorce case, as follows: "If parties make a contract, even though it be thereafter recorded in an order of the court made by consent, they have complete liberty afterwards to vary that contract by further agreement but, if they do so, one of them can hardly ask the court to enforce the original terms of their bargain where the further agreement substantially alters the effect of those terms."
9. Also cited was the following passage from the speech of Lord Diplock in Attorney-General v Times Newspapers Ltd [1974] AC 273 at 307-8: "One may leave aside for the purposes of the present appeal the mere disobedience by a party to a civil action of a specific order of the court made on him in that action. This is classified as a 'civil contempt.' The order is made at the request and for the sole benefit of the other party to the civil action. There is an element of public policy in punishing civil contempt, since the administration of justice would be undermined if the order of any court of law could be disregarded with impunity; but no sufficient public interest is served by punishing the offender if the only person for whose benefit the order was made chooses not to insist on its enforcement."
10. In the light of this authority, it was argued, the undertaking the subject of the contempt proceedings should be seen as having been given for the benefit of the plaintiffs but, by reason of the deed subsequently executed by the parties, they now have no right to insist on its enforcement through a motion in these proceedings. Reference was made to the decision of Merkel J in Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83, 149 FCR 494, where his Honour observed that it is "plainly prudent that any offer of a settlement or compromise of private claims, which arise out of conduct in breach of a court order, should clearly specify the private claims that are being settled and make quite clear what is intended, or not intended in respect of a contempt claim:" [45] (506).
11. The submissions noted that cl 4 of the deed provided for a carve out of Ms Melocco's ability to pursue any insurance claims in relation to workplace injury. A carve out in respect of the contempt proceedings, it was said, could have been included in that clause if that were the parties' intention.
12. Here also, counsel for the plaintiffs, in written submissions developed orally by Mr Blackburn, took me to the circumstances surrounding the deed. These are to be found in an affidavit of Mr McKeough of 21 October 2014 and the exhibit to that affidavit, "AGM-4."
13. By a letter to Mr Laxon of 16 July 2014, Mr McKeough conveyed his instructions that the plaintiffs would settle the claims in the 2013 proceedings on the terms which were later incorporated in the deed, including Ms Melocco's "undertakings to the Court in the terms of the undertakings given to the Court on 20 March 2014, on a permanent basis."
14. In a separate letter to Mr Laxon of the same date, Mr McKeough wrote: "Having regard to the authorities and in light of the reference at [5] of the Statement of Charge to the Notice of Motion filed 17 April 2014 to Ms Melocco's 'wilful disobedience of her undertakings to the Court', we note that the contempt motion cannot be settled between the parties, and that the Court may make findings of contempt and may impose penalties despite any agreement between the parties. Our clients do not seek to settle the contempt motion and this letter is not an offer to do so. Our clients are aware of the need to exercise prudence and caution in this regard and of the need to make full disclosure to the Court. … … we consider that Ms Melocco should proffer an apology and consent to a declaration that she was in contempt of Court. If Ms Melocco does so, and provided that any contempt of Court by Ms Melocco is not found to be contumacious, we consider that the penalty which will be imposed by the Court will be that it accepts Ms Melocco's apology and orders her to pay our clients' costs of the contempt proceeding on an indemnity basis. … For the avoidance of any doubt, this letter is not an offer capable of acceptance, and does not relate to any aspect of the proceeding other than our clients' contempt motion."
15. The authority referred to in the first quoted paragraph was noted in footnotes as Louis Vuitton v Design Elegance at [44]-[45] (506). In that case Merkel J summarised the current law on civil contempt at [6] (497-8), as follows: "Deliberate conduct which is in breach of a court order will constitute wilful disobedience of the order, and therefore a civil contempt, unless the conduct be casual, accidental or unintentional: see Australian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98 at 106-107 ('Mudginberri') and 112-113. However, the disobedience will amount to a criminal contempt if it involves 'deliberate defiance or, as it is sometimes said, if it is contumacious': see Witham v Holloway (1995) 183 CLR 525 ('Witham') at 530."
16. What his Honour had to say at [44]-[45] was this: "44 Plainly, where conduct is in breach of a court order, but also gives rise to private claims for relief, the private claims may be compromised or settled. However, in the light of Witham, an aggrieved party and its solicitors should exercise prudence and caution when offering to settle claims arising out of the contravening conduct. That is particularly so when they are dealing with a litigant in person. The reason for that is that breach of a court order is criminal in nature, may result in fines and imprisonment and has the potential to constitute a criminal contempt. Accordingly, there is a real risk of impropriety, and possibly illegality, if an offer to compromise or settle the claims of the aggrieved party in respect of the contravening conduct is not reasonably and fairly based on the legal right to relief the aggrieved party has, or may have, in respect of that conduct. In other words, if the threat or prospect of contempt proceedings is used to obtain a compromise or settlement beyond that to which the aggrieved party would be entitled as a matter of law, the threat may amount to improper pressure, duress or even extortion. 45 While the law may be in an uncertain state on this issue, it is plainly prudent that any offer of a settlement or compromise of private claims, which arise out of conduct in breach of a court order, should clearly specify the private claims that are being settled and make quite clear what is intended, or not intended in respect of the contempt claim. For example, a private litigant is not under a duty to prosecute a contempt claim. Therefore, provided that there is still a distinction between civil and criminal contempt, it may not be improper for a party to indicate that, if that party's non-contempt claim is resolved, that party does not intend to prosecute the contempt claim. Further, even if a prosecution has commenced, it may not be improper for the prosecuting party to agree to seek to discontinue the contempt claim provided an adequate disclosure is made to the Court. However, it is clear that, save where the issue of contempt is entirely excluded from the offer, the offer should be limited to matters that fall within, and do not travel beyond, the legal entitlement of the aggrieved party. At the least, the offer should be based on a reasonable and reliable estimate of that entitlement."
17. I note his Honour's observation that the law on this issue "may be in an uncertain state." I would not attempt to resolve that uncertainty without full argument on the matter and, in any event, I do not find it necessary to do so.
18. As to the first of the letters of 16 July proposing the terms of settlement of the proceedings, Mr Laxon responded by a letter of 23 July conveying his instructions that the offer was accepted. In respect of the undertakings sought, he proposed that they "continue on an ongoing basis, or until further order." As to the deed, he proposed that it "contain a mutual non-disparagement provision, in addition to the mutual releases, confidentiality and agreed form of statement in the event of inquiries." He added: "In this regard we consider that the parties now have an agreement binding the parties to join in bringing the formal deed into existence and then to carry it into execution."
19. On 31 July 2014, there was a telephone conversation between Mr Laxon and Mr McKeough about the finalisation of the deed, in the course of which Mr Laxon said that Ms Melocco "will plead to the contempt and throw herself on the Court's mercy." On 1 August the contempt motion was before a registrar who, by consent, ordered that it be stood over to 29 August for referral to the duty judge. During August there were exchanges of emails between the parties concerning minor alterations to the draft deed.
20. On 28 August, Mr Laxon stated in an email to Mr McKeough that Ms Melocco was "not yet well enough to deal with the contempt application" and proposed an adjournment until her health improved. On 29 August, the contempt motion was stood over to 9 October 2014 for referral to the duty judge, and a solicitor employed by Mr McKeough told the registrar, without demur on behalf of Ms Melocco, that the civil aspect of the proceedings had been settled and that the contempt motion was the only active part of the proceedings.
21. In Mr Laxon's submissions, again developed orally by Mr Conomy, it was argued that by its express terms the agreement enshrined in the deed meant the dismissal of the proceedings founded upon the further amended statement of claim with no exception with respect of the contempt motion. Accordingly, it was said, there is no ambiguity in the deed which might invite consideration of its surrounding circumstances. However, as counsel for the plaintiffs pointed out, this is inconsistent with the recent authority on the construction of commercial contracts referred to briefly by Basten JA in the passage from Wende v Horwath at [64], quoted above. His Honour referred to Electric Generation Corporation v Woodside Energy Ltd [2014] HCA 7, 251 CLR 640, at [35] (656), where the plurality said: "… The meaning of the terms of a commercial contract is to be determined by what a reasonable businessperson would have understood those terms to mean. That approach is not unfamiliar. As reaffirmed, it will require consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract. Appreciation of the commercial purpose or objects is facilitated by an understanding "of the genesis of the transaction, the background, the context [and] the market in which the parties are operating". " I have omitted the footnoted references to authority in that passage, but the quotation at the end of it is from Codelfa.
22. In oral argument Mr Blackburn also referred to the judgment of Santow J (as he then was) in Karam v ANZ Banking Group [2001] NSWSC 709, in which his Honour reviewed the principles applicable to the construction of releases at [406]. It is sufficient for the present purposes to set out the first of those: "(1) In construing a release… , a Court should ascribe to the release the meaning that the release would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties at the time they signed the document containing that release: ICS v West Bromwich BS [1998] 1 All ER 98 per Lord Hoffman at 114."
23. In light of this authority, I am satisfied that it is appropriate to examine the circumstances surrounding the deed in the present case to which I have referred. From the communication between the solicitors for the parties and the conduct of the matter before the registrar, it is apparent, as counsel put it in written submissions, that the object of the deed "was to achieve a settlement of the causes of action pleaded in the further amended statement of claim." Its purpose was "not to impose any restriction on the ability of the plaintiff to take steps to prosecute the contempt motion." This is affirmed by the terms of the formal order relating to the disposition of the proceedings in the consent orders attached to the deed. Order 1 is that the "claims set out in the Further Amended Statement of Claim filed 16 May 2014 be dismissed."
24. Indeed, there is force in Mr Blackburn's argument that there was a binding agreement to that effect when, in response to Mr McKeough's offer of settlement in his letter of 16 July 2014, Mr Laxon responded on 23 July conveying that he had instructions to accept the offer and adding that "we consider that the parties now have an agreement binding the parties to join in bringing the formal deed into existence and then carried into execution."
25. By that response, Mr Blackburn said, there was an agreement of the kind described in Masters v Cameron (1954) 91 CLR 353 at 360, that is, "one in which the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form that would be fuller or more precise but not different in effect." In the present case, Mr Blackburn noted, subsequent correspondence dealt with no more than minor alterations to the terms of the agreement. That being so, it was appropriate to have regard to the conduct of the parties thereafter. In Hughes v NM Superannuation Pty Ltd [1993] 29 NSWLR 653, Sheller JA (Kirby P and Meagher JA agreeing) observed (at 670) that "subsequent communications may be taken into consideration as a factor in order to determine whether prior dealings between the parties gave rise to a binding agreement."
26. In all the circumstances, I am satisfied that the deed and the consequential consent orders did not bring the contempt proceedings to an end. As counsel correctly put it in written submissions, so much is apparent from the text of the document, from its purpose and, in particular, from the factual circumstances known to the parties before it was executed.
27. In Mr Laxon's written submissions it was contended, in the alternative, that the plaintiffs had waived any contempt by pleading the 3 April email in the amended statement of claim of May 2014. Reference was made to the statement in Halsbury's Laws of Australia at [105-265] that a "civil contempt may be waived by the opposing party taking another step in the action." However, it is not apparent how the pleading of the email in the further amended statement of claim is a step amounting to waiver. In any event, in the light of the conduct of the parties which I have considered, there is no foundation for finding such a waiver. The contempt
28. I turn, then, to the contempt charged, which must be established beyond reasonable doubt: Witham v Holloway (supra) in the plurality judgment at 528 - 534. It is not in dispute that Mrs Melocco sent the email of 3 April 2014 and its attachments to Mr Jacobs. However, I must be satisfied to the criminal standard that that material was in breach of her undertaking in the manner alleged in the statement of charge. I have referred above to the brief statement of the law of civil contempt by Merkel J in Louis Vuitton v Design Elegance at [6]. Authority on the nature of the breach which must be established was also summarised by Garling J in Commissioner of Fair Trading v Rixon (No 2) [2014] NSWSC 431 at [41-43], as follows: 41. … where the contempt of court consists of a failure to comply with an order of the Court, it must be demonstrated that the contempt was wilful, and not merely casual, accidental or unintentional: Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98. However, it is not necessary for an applicant to prove that the contemnor intended to breach an order of the Court: see Anderson v Hassett [2007] NSWSC 1310;Mudginberri at 111; Matthews v Australian Securities Investment Commission [2009] NSWCA 155 at [16] per Tobias JA. 42. As Brereton J said in Anderson at [6]: "The statement in Mudginberri (at 113) that a deliberate commission or omission which is in breach of an injunctive order or an undertaking will constitute such wilful disobedience unless it be casual, accidental or unintentional, does not require proof of a specific intent, but permits an alleged contemnor to show by way of exculpation that the default was 'casual, accidental or unintentional' ... " 43. … it is not necessary for an applicant to prove that the contemnor was aware that his or her conduct constituted a breach of the Court's order: Microsoft Corporation v Marks (No.1) (1996) 69 FCR 117 at 143 per Lindgren J; Metcash Trading Ltd v Bunn (No.5) [2009] FCA 16 at [9] per Finn J.
29. In his written submissions Mr Laxon considered each of the breaches alleged in the statement of charge and the particulars accompanying it, and submitted that none of them was made out. In respect of representations 10, 11 and 13 (par 5(d), (e) and (g) of the statement of charge), he relied on the misdescription of Ms Melocco as the "plaintiff". To the extent that all the alleged breaches are founded on statements made in Ms Melocco's complaint to the Human Rights Commission (attachment B to the correspondence), he mounted his argument that the complaint did not form part of the material specified in par 4 of the statement of charge. Both these submissions must be rejected for the reasons I have given.
30. Otherwise, Mr Laxon's submissions amounted to an analysis of the passages from the material particularised for each breach and an argument that they do not convey the representations complained of. However, it must be noted that for the purpose of each breach alleged reliance is expressly placed upon the totality of the email and the attachment. Further, in respect of 5 of the representations: 2, 7, 12, 18 and 34, reliance is expressed also to be placed upon particulars of other breaches. Mr Blackburn explained in oral argument that the particularised passages are merely highlights of the material said to give rise to the representations, specified for the assistance of Ms Melocco in setting out the case she is called upon to meet.
31. It is necessary, then, to have regard to the whole of the material in the email and the attachment when considering each of the alleged breaches. I have done so. The combined effect of the passages particularised in respect of the breaches imports the flavour of the material as a whole. I must determine whether I am satisfied to the criminal standard that the material conveys each of the representations complained of. I accept Mr Blackburn's submission that this involves consideration of how the material would be understood by the ordinary reasonable reader, a test akin to that to be applied in determining whether defamatory material conveys certain imputations: Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158, per Hunt CJ at CL at 164.
32. I am satisfied that the material gives rise to the 9 representations complained of. It is unnecessary to examine the material in its totality or to address each of the particularised passages. However, I shall deal briefly with each of the alleged breaches, by reference to the subparagraphs of par 5 of the statement of charge. 1. Par 5 (a) - representation 1: that Mr Bartosch is a workplace bully. 2. It is sufficient to refer to the passage at particular (iii) concerning the abrasive personality of the Executive Chairman and the delivery to Ms Melocco of an oppressive workload, the ensuing particulars concerning the deleterious effect of that workload upon her health, and the description in particular (vii) of the course of the conciliation and the assertion that Mr Bartosch was driving it. It is clear that this material relates to the conduct of Mr Bartosch and, while the term "bully" is not used, that conduct is fairly described as bullying. Indeed, as will be seen when I deal with the next paragraph of the statement of charge, there is an express reference to bullying in another part of Ms Melocco's complaint to the Human Rights Commission. 3. Par 5(b) - representation 2: That Mr Bartosch has bullied other employees of 1st Available. 4. This is demonstrated by the description at particulars (ii) and (iii) of Mr Bartosch's treatment of Ms Newlands and Ms Towns, against the background of the treatment of Ms Melocco herself alleged in the previous paragraph. Again, while the term "bully" is not used in the particularised material, the treatment of those two other employees is properly described as bullying. However, in part of the Human Rights Commission complaint which is not particularised she wrote that Mr Bartosch "bullies and is brutal to staff e.g. Simone and Belinda" (a reference to Ms Newlands and Ms Towns): Exhibit "AGM-2" at p304. 5. Par 5(c) - representation 7: That Mr Bartosch's poor management and bad behaviour is undermining productivity and performance. 6. Here reliance is placed upon the bullying behaviour alleged in the previous two paragraphs, together with the assertion in particular (ii) to the effect that 1st Available, being a "start-up," should be focusing on its market rather than attacking its former employees (apparently a reference to the litigation commenced against Ms Melocco). The conduct attributed to Mr Bartosch could certainly be described as poor management and bad behaviour, such as would affect performance. Productivity could well be affected as a result, but whether that is conveyed by the particularised material is not as clear. However, it should be noted that at pp 302 - 303 of exhibit "AGM-2" there are recorded comments critical of Mr Bartosch's managerial competence. In any event, I accept Mr Blackburn's argument that the reference to productivity and performance should be viewed disjunctively, so that it is not necessary to show that the material reflects on both those things. It sufficient if it reflects on performance, which I find it does. 7. Par 5(d) - representation 10: That 1st Available has failed to pay Ms Melocco's proper entitlements. 8. This representation is clearly conveyed by the material, as is demonstrated by the particularised passages. Mr Laxon's submissions did not suggest otherwise. The only point taken was the misdescription of Ms Melocco as the plaintiff. 9. Par 5(e) - representation 11: That 1st Available has not provided Ms Melocco with proper documentation relating to the termination of her employment. 10. Again, this representation is clearly conveyed by the particularised material and the misdescription of Ms Melocco as the plaintiff was the only point taken in Mr Laxon's submissions. It should be noted that in the sixth line of particular (ii) the word "entitled" should be "disentitled". 11. Par 5(f) - representation 12: That 1st Available has engaged in workplace bullying and harassment. 12. Here the conduct alleged in pars (a) and (b) is relied upon, together with the reference in particular (ii) to a developing culture of sexual discrimination and the matters raised in particular (iii) concerning the proceedings in this court. Ms Melocco's statement that she "refused to sign it" relates to her assertion in the complaint to the Human Rights Commission that she received a "draft" statement of claim saying "that they would sue me for defamation if I didn't agree not to contact the company and its employees for 3 years." Here again, the material relied upon demonstrates a pattern of behaviour properly described as bullying, attributable not just to Mr Batosch but, clearly in the light of the additional matters particularised, to the company. 13. Par 5(g) - representation 13: That 1st Available is victimising Ms Melocco. 14. This representation is clearly conveyed by the material relied upon, which includes the section of Ms Melocco's complaint to the Human Rights Commission under the subheading "vilification" and her reference in the email to a "victimisation matter pending". Here also, Mr Laxon's submissions did not argue the contrary, the misdescription of Ms Melocco as the plaintiff being the only point taken. 15. Par 5(h) - representation 18: That 1st Available provides an unhealthy and dangerous workplace environment. 16. This representation is said to be an inference from the conduct alleged in pars (a), (b), (f) and (g). The inference is clearly available, particularly in the light of Ms Melocco's assertion of the effect of her workload on her health and her humiliation during the conciliation par: (a) (iv - vii), and her reference to the intimidation of Ms Newlands and the traumatisation of Ms Towns: par (b) (ii), (iii). 17. Par 5(i) - representation 34: That 1st Available tolerates bullying, sexism and adverse action against employees. 18. I accept, as alleged, that this general representation is conveyed by the whole of the material and, in particular, the matters the subject of pars (a), (b), (f) and (g). As Mr Blackburn acknowledged, the term "adverse action" is of uncertain meaning and may add nothing to the expressions "bullying" and "sexism". It may be apt to embrace Ms Melocco's complaints about 1st Available's failure to pay her proper entitlements and to supply her with proper documentation relating to her termination, the subject of pars (d) and (e). However, I accept Mr Blackburn's argument that here also the three expressions should be considered disjunctively, and the material certainly conveys bullying and sexism.
33. Mr Laxon's written submissions also take the point that representations 1, 7, 18 and 34 are expressed in the present tense, while the material relied upon to demonstrate the breach of them consists of Ms Melocco's description of past events. It was argued that I could not be satisfied that the email and attachments convey that the behaviour alleged in those representations was continuing. However, reading the material as a whole, I reject this argument. As Mr Blackburn pointed out, the whole tenor of the material is that not only have these things been done but they are, as he put it, "the current modus operandi" of Mr Bartosch and 1st Available.
34. Accordingly, I am satisfied beyond reasonable doubt that by sending the email and the accompanying material Ms Melocco was in breach of her undertaking in respect of nine of the representations in the manner alleged in the statement of charge. The question remains whether those breaches amount to contempt of court.
35. In her affidavit Ms Melocco deposed that, after the termination by the Human Rights Commission of her complaint, she did not have the funds to pursue her "victimisation complaint" through the Federal Court, the course said to be open to her in the Commission's reasons. Accordingly, she decided to make "one last attempt to resolve matters" through Inteq, given its role as "corporate advisory and strategist" for 1st Available. She believed that it was pointless contacting 1st Available or Mr Bartosch because at that stage proceedings had been instituted against her. It was for that reason that she sent the email with its attachments to Mr Jacobs.
36. The concluding paragraphs of her affidavit are in the following terms: "29. In sending the email I was not intending to act in defiance or breach of my undertakings to the Court. Nor was I intending to disregard my obligations to the Court. To the best that I can recollect, I did not consciously have in my mind the fact or content of the undertakings, at the time I sent the email to Mr Jacobs on 3 April 2014. I was panicking, I was in distress, and was not thinking clearly at this time.
37. To the extent that what I sent is found to be in breach of my undertaking by sending the email, I sincerely apologise to the Court."
38. Since October 2013, Ms Melocco has been receiving treatment from a clinical psychologist, Dr Nicholas Marlowe. I received a report of Dr Marlowe into evidence, after excising some portions which I found to be inadmissible, and he gave brief oral evidence. He has been treating Ms Melocco for symptoms of major depression and post traumatic stress disorder, attributed to her experience of working for 1st Available and, in particular, her conflict with Mr Bartosch. Dr Marlowe's report records a history of suicidal ideation and a suicide attempt in November 2013. He also noted that pending court proceedings tended to trigger in her "powerful suicidal thoughts and impulses." His opinion was that she requires "ongoing psychological treatment and careful monitoring" to make a full recovery and that recovery is unlikely while she continues to face legal proceedings.
39. Mr Conomy sought to make a case that Ms Melocco's breaches of her undertaking were "casual, accidental or unintentional", the expression used in the authorities summarised by Garling J in Commissioner of Fair Trading v Rixon set out above. He relied upon the psychological evidence, together with par 29 of her affidavit which I have quoted.
40. In my view, that case is unsustainable. It establishes no more than that at the time Ms Melocco sent the offending email she was distressed and did not turn her mind to her undertaking. The fact remains that the email demonstrates a deliberate and considered course of action, and nothing in the psychological material suggests any defect of cognition. The material relied upon by Mr Conomy may well bear upon penalty, but not upon her guilt.
41. I accept Mr Melocco's assertion in her affidavit that she did not send the email in conscious defiance of her undertaking. Nevertheless, her breaches were wilful in the sense considered by the High Court in Australian Meat Industry Employee's Union v Mudginberri Station (supra) at 109 - 113. If she had sent the email conscious that it was in breach of her undertaking, her conduct would have been contumacious, an expression also considered by the High Court in the same passage. The plaintiffs did not seek to make out such a case.
42. Accordingly, I find Ms Melocco guilty of contempt. Penalty
43. I am indebted to counsel and to Mr Laxon for the exposition in their written submissions of relevant sentencing principles, and I am conscious of the breath of the discretion available to me in the present case. I am mindful that any breach of an undertaking to a court amounting to contempt is a serious matter, and that regard must be had to deterrence, personal and general. In written submissions counsel for the plaintiffs suggested that a bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 might be appropriate, while Mr Laxon submitted that no more than a bond under s 10 of that Act was called for. In oral argument Mr Blackburn did not wish to be heard on penalty, saying that it was very much for the court.
44. After careful consideration, and having regard to Ms Melocco's apology for her conduct in par 30 of her affidavit, I have decided that it is not expedient to impose any penalty upon her. I have regard to matters in mitigation fairly raised by Mr Laxon in his written submissions. I accept that she perceives herself to have been treated unjustly by the plaintiffs over a significant period, and that her motive in sending the email to Mr Jacobs was to seek some form of redress. Of course, whether her perception of unjust treatment is well founded is not a matter for me to decide, and is not relevant for present purposes.
45. She is a mature woman, in her late 50's and, apparently, a person of otherwise good character. She suffers a severe psychological condition, requiring ongoing treatment. When she was present at the hearing of the contempt proceedings she was visibly distressed. I have no doubt that these proceedings have been a stressful experience for her but, I hope, a salutary one. I think it unlikely that she would reoffend in this way.
46. Of course, she must play the plaintiffs' costs of the contempt motion, and on an indemnity basis. In NCR Australia v Cricket Connection [2005] NSWSC 1118, Campbell J said at [102]: "In imposing a costs order for contempt, the Court aims so far as it can to provide full indemnity to a party who obtained a court order which has been breached in a way that amounts to contempt. Thus, the usual order for costs is that the contemnor pay the costs on an indemnity basis." His Honour went on to observe there was no reason to depart from that order in that case. Nor was any reason to do so advanced on behalf of Ms Melocco in the present case. Orders
47. Accordingly, I make the following orders: 1. 1. The orders made by this court on 20 March 2014 are amended in accordance with paragraph 8 of the plaintiffs' amended notice of motion 2. 2. I declare that the defendant was in contempt of court for failing to comply with her undertaking to the court pursuant to the statement of charge. 3. 3. Taking into account the defendant's apology at paragraph 30 of her affidavit of 8 October 2014, I impose no penalty upon her. 4. 4. The defendant is to pay the plaintiffs' costs of the motion on an indemnity basis.

Statement of Charge

1. On 17 March 2014 the defendant gave an undertaking to the Court in the following terms: ''The defendant undertakes to the Court that she will not, until further order, make the representations set out in the attached schedule, except for the purposes of legal advice, legal proceedings, making an insurance claim (including workers compensation) or receiving medical treatment."
2. The attached schedule to the undertaking set out the following representations that the defendant undertook to the Court not to make: 1. That Mr Klaus Bartosch is a workplace bully; 2. That Mr Klaus Bartosch has bullied other employees of 1st Available; 3. That Mr Klaus Bartosch has attempted a ''public stoning" of the plaintiff; 4. That Mr Klaus Bartosch has ridiculed the plaintiff all over the internet; 5. That Mr Klaus Bartosch has been discussing the plaintiff's relationship with a Mr Kozlowski in a way that is false and repugnant; 6. That Mr Klaus Bartosch's harassment of the plaintiff has caused serious domestic violence in the plaintiff's home; 7. That Mr Klaus Bartosch's poor management and bad behaviour is undermining productivity and performance; 8. That Mr Klaus Bartosch fuelled a culture of sex discrimination in the workplace; 9. That 1st Available has commenced legal proceedings without the funds to pay for them; 10. That 1st Available has failed to pay the plaintiff the plaintiff's proper entitlements; 11. That 1st Available has not provided the plaintiff with proper documentation in relation to the termination of the plaintiff's employment; 12. That 1st Available has engaged in workplace bullying and harassment; 13. That 1st Available is victimising the plaintiff; 14. That 1st Available has caused the plaintiff to suffer from post traumatic stress disorder, and is taking no steps to rectify that issue; 15. That 1st Available is discriminating against the plaintiff because the plaintiff required a simple form to be completed, and the plaintiff ended up in hospital as a result; 16. That the plaintiff was harassed almost daily by telephone and email by Mr Klaus Bartosch and/or 1st Available while on sick leave; 17. That 1st Available is using the plaintiff as an example to ensure that others do not exercise their rights against it; 18. That 151 Available provides an unhealthy and dangerous workplace environment; 19. That 1st Available has commenced vexatious proceedings against the plaintiff; 20. That 1st Available fosters a culture of sex discrimination in the workplace; 21. That 1st Available is putting the plaintiff's life at risk; 22. That 1st Available created fraudulent documents in connection with the plaintiff's termination; 23. That 1st Available has threatened to lie to a psychologist about the plaintiffs experience in the workplace as a means of forcing the plaintiff to give up the plaintiffs workplace rights; 24. That 1st Available pressured the plaintiff into investing into the company; 25. That 1st Available breached the Olympic Insignia Act; 26. That 1st Available in its business imposed timelines that did not allow for proper planning; 27. That 1st Available employee Kevin Morgan lied to a WorkCover inspector; 28. That 1st Available employee Kevin Morgan engaged in conduct which caused the plaintiff to receive abuse from third parties and collapse at home; 29. That 151 Available condones domestic violence and thinks it is funny; 30. That 151 Available is not resolving the plaintiff's dispute merely to accommodate the bullying of Mr Klaus Bartosch; 31. That Mr Klaus Bartosch and 151 Available have been using shareholder money to aggressively raise capital, inter alia from mums and dads while the plaintiff is dangerously ill, and may not survive, because of Mr Klaus Bartosch's conduct; 32. That the plaintiff was harassed by 151 Available and/or Mr Klaus Bartosch while on sick leave to withdraw the plaintiffs complaint so that 1st Available could get officers' and directors' insurance; 33. That 1st Available is suing the plaintiff in the Supreme Court vindictively because of the plaintiff's complaint about Mr Klaus Bartosch; 34. That 1st Available is an organisation which tolerates bullying, sexism and adverse action against employees; 35. That Mr Klaus Bartosch made bullying and sexist remarks to employees, "Undertaking 1 to Undertaking 35 respectively".
3. The defendant was aware of the undertakings because she provided instructions to her solicitors to give the undertakings and was advised by her solicitors that the undertakings had been given to the court in accordance with instructions.
4. On 3 April 2014 at approximately 2:01 PM the defendant sent to Mr Kim Jacobs an email ("the email"); and an attachment constituting correspondence from the Australian Human Rights Commission to the defendant dated 1 April 2014 ("the attachment").
5. In wilful disobedience of her undertakings to the Court, the defendant, by sending to Mr Jacobs the email and the attachment represented to Mr Jacobs: (a) That Mr Klaus Bartosch is a workplace bully (breach of Undertaking 1 ); PARTICULARS The representation was conveyed by the totality of the email and attachment, but in particular by a combination of the following: i. "And of course, given that there is now a victimisation matter pending" [the letter]; ii. "I was injured in the workplace and just wanted a concerned employer" [the letter]; ii. "the executive chairman had a personality I would characterise as abrasive and singled out me to deliver a workload that was increasingly oppressive, unachievable and bombarded me with changing instructions 24/7. I was denied downtime to rest and indeed denied time to fulfil family responsibilities." [Attachment, numbered paragraph 2] iv. "after months of being driven to ill-health because of an unachievable workload I raised a serious complaint about the 24n emails instructions, discrimination and my rights to family time and the operations of the company." [Attachment, numbered paragraph 5] v. "During the week of my medical leave instead of being allowed to rest, I was harassed almost daily with telephone calls, emails and in one instance an email asking me to account for myself as me being on medical leave could have an adverse effect on the company" [attachment, numbered paragraph 8]. vi. "By the end of that week my health was seriously endanger and I felt I had no alternative but to take my complaint to the Human Rights Commission. l notified my employer by text that J had complained to the Human Rights Commission - that I had asked them to step in and make the discrimination and bullying to stop and that he had failed to act. You have that text already." [Attachment, numbered paragraph 9 on page 2]. vii. "Eventually when It did occur I was taken into a room with my former employer despite notifying the conciliator I was frightened of them and the conciliation was unable to even begin when it was suggested that the person I had complained of Klaus Bartosch would be deciding if they pay my wages. He was driving the conciliation. I was found on the toilet floor of the ladies in the fetal position. I was humiliated and was unable to even have any insight that I now required urgent medical attention. This went on for some time." [Attachment, numbered paragraph 13]. (b) That Mr Klaus Bartosch has bullied other employees of 151 Available (breach of Undertaking 2). PARTICULARS The representation was conveyed by the totality of the email and the attachment but in particular by combination of the following: i. Each of the statements at (a) i- vi above; ii. "Simone Newslands - a young 25ish community manager was subjected to much the same as me and bombarded on one Friday afternoon with some 25 emails of changing instructions. I make this point because the nature of the instructions are oppressive. Her supervisor, my successor, eventually told her to turn off the phone and computer and go home. The following Monday this supervisor, Tanya Taylor was telephoned by Klaus Bartosch and told over the phone ufire the bitch" to which she advised you can't do that. An internal mediation occurred and Bartosch was meant to take Simone to coffee and apologise. Instead he used his body language to lean up against a wall and pin her within intimidating her [sic] with the question "What's wrong with your face' He did not apologise". [Numbered paragraph 1 on page 5 of the attachment] iii. "Another Worker at the company, Belinda Towns was encouraged to invest $300k in the start-up and once the money was received was subjected to not dissimilar treatment. Her name was apparently trashed at a meeting which Tanja Taylor attended and she had cause to rebuke Mr Bartosch for his conduct. Belinda's contract was terminated over the telephone. Like me, Belinda is traumatised by the manner she was treated." [Numbered paragraph 2 on page 5 of the attachment] (c) That Mr Klaus Bartosch's poor management and bad behaviour is undermining productivity and performance (breach of Undertaking 7). PARTICULARS The representation was conveyed by the totality of the email and the attachment but in particular by a combination of the following: i. Each of the statements at (a) i- vi and (b) ii - iii above; ii. "1st Available is a start-up and should be focusing shareholder funds on the market place and not attacking former employees. It is seriously unhelpful to everyone. Spending nearly $70k on legal fees against me? Why? [the email] (d) That 1st Available has failed to pay the plaintiff the plaintiff's proper entitlements (breach of Undertaking 10). PARTICULARS The representation was conveyed by the totality of the email and the attachment but in particular by a combination of the following: i. "not sure how this has all got so out of hand but would you please insure: 1. My correct termination pay and superannuation is paid forthwith plus the appropriate payslips given to me for taxation purposes" [the email] ii. "I was not paid for this termination and despite various communications the matter remains unresolved. I requested a centrelink separation certificate so that I could claim centrelink payments whilst I was so ill. I was subsequently sent a separation certificate that stated my employment period was from 02/07/2012- 01/08/2012 and that 1 had abandoned my employment. This is not correct and disentitled me from any benefit as a result for 12 weeks. I had no form of income at this time, was unable to work and was bedridden. I have a medical certificate that states I was unfit for work from 20 July- 28 August 2012. 1st Available refused to talk to me after they terminated my employment." [Attachment numbered paragraph 11]. iii. "Naturally I became very upset, this was 12 months later and I should of [sic] been paid my superannuation, given payslips in 2012 and my termination pay plus an apology. I complained to the directors of the company and their corporate advisers who also provide some CFO capabilities for the company, thinking anyone with any accounting head would want to sort it out." [Attachment, numbered paragraph 6 on page 4]. iv. "I refused to sign it. I want to be paid. They then sued me for defamation and spent some $40,000 I believe instead of paying me my workplace entitlements. So having spent this sort of money without ever picking up the telephone to sort out an employees pay you have to wonder? In their statement of claim they use my complaint to the Human Rights Commission as the basis of claiming that I had defamed the company and Mr Klaus Bartosch. My understanding of complaints to the Commission is irrespective of whether they are found to have merit you cannot vilify someone because they have complained to the commission. There have been attempts to settle providing I give up my rights to my workplace entitlements, and any workers compensation claim I may have, I must lie to a psychologist and say I only 'perceived the discrimination and bullying [attachment, numbered paragraph 8 on page 4]. (e) That 1st Available has not provided the plaintiff with proper documentation in relation to the termination of the plaintiffs employment (breach of Undertaking 11). PARTICULARS The representation was conveyed by the totality of the email and the attachment but in particular by a combination of the following: i. "not sure how this has all got so out of hand but would you please insure: 1. My correct termination pay and superannuation is paid forthwith plus the appropriate pays lips given to me for taxation purposes" [the email] ii. "I was not paid for this termination and despite various communications the matter remains unresolved. I requested a centrelink separation certificate so that I could claim centrelink payments whilst I was so ill. I was subsequent the centre separation certificate that stated my employment period was from 02/07/2012 - 01/08/2012 and that I had abandoned my employment. This is not correct and is entitled me from any benefit as a result for 12 weeks. I had no form of income at this time, was unable to work and was bedridden. I have a medical certificate that states I was unfit for work from 20 July- 28 August 2012. 1st Available refused to talk to me after they terminated my employment." [Attachment numbered paragraph 11]. iii. "Naturally I became very upset, this was 12 months later and I should of [sic] been paid my superannuation, given payslips in 2012 and my termination pay plus an apology. I complained to the directors of the company and their corporate advisers who also provide some CFO capabilities for the company, thinking anyone with any accounting head would want to sort it out." [Attachment, numbered paragraph 6 on page 4]. iv. "In June 2013 I respectively requested my payslips and group certificate for 2012 from my former employer- several times as they had not been previously provided as is required by law. They continue to ignore my requests until I started to get really upset." [Attachment, numbered paragraph 3 on page 3]. (f) That 1st Available has engaged in workplace bullying and harassment (breach of Undertaking 12). PARTICULARS The representation was conveyed by the totality of the email and the attachment but in particular by a combination of the following: i. each ofthe statements at (a) and (b) above; ii. "there was a developing culture of sexual discrimination - snide remakes [sic] made on trade stands about women's appearances, participation in workshops with the selection of images that represented overly sexualised images to communicate health etc." [Attachment, numbered paragraph 3 on page 1]. iii. "I refused to sign it. I want to be paid. They then sued me for defamation and spent some $40,000 I believe instead of paying me my workplace entitlements. So having spent this sort of money without ever picking up the telephone to sort out an employees pay you have to wonder? In their statement of claim they use my complaint to the Human Rights Commission as the basis of claiming that I had defamed the company and Mr Klaus Bartosch. My understanding of complaints to the Commission is irrespective of whether they are found to have merit you cannot vilify someone because they have complained to the commission. There have been attempts to settle providing I give up my rights to my workplace entitlements, and any workers compensation claim I may have, I must lie to a psychologist and say I only 'perceived the discrimination and bullying'" [attachment, numbered paragraph 8 on page 4]. (g) That 151 Available is victimising the plaintiff (breach of Undertaking 13). PARTICULARS The representation was conveyed by the totality of the email and the attachment but in particular by a combination of the following: i. "At the time of this medical leave another member of management was on leave with his family skiing. He was allowed to take that rest and recreation time. He was paid for this holiday time and was on contract to the company. I was not afforded the same courtesy despite the medical certificate being provided to my employer." [Attachment, numbered paragraph 8 on page 2]. ii. "By the end of that week my health was seriously in danger and I felt I had no alternative but to take my complaint to the Human Rights Commission. I notified my employer by text that I had complained to the Human Rights Commission - that I had asked them to step in and make the discrimination and bullying to [sic] stop and that he had failed to act. You have that text already. It is [sic] now come to light that my employer terminated my employment the following day, July 27 as a result of that complaint." [Attachment, numbered paragraphs 9 and 10 on page 2]. iii. "Eventually when it did occur I was taken into a room with my former employer despite notifying the conciliator I was frightened of them and the conciliation was unable to even begin when it was suggested that the person I had complained of Klaus Bartosch would be deciding if they paid my wages. He was driving the conciliation. I was found on the toilet floor of the ladies in the fetal position. I was humiliated and was unable to even have any insight that I now required urgent medical attention. This went on for some time." [Attachment, numbered paragraph 13 on page 3]. iv. "Vilification I was unable to work at all from July 2012 - December 2012 and was largely bed ridden except for the weekly visit to my psychologist I did not know and no one brought to my attention that I could of [sic] claimed Workers Compensation - my employer just ignore the impact of the discrimination on my health. In June 2013 respectively requested my payslips and group certificate for 2012 from my former employer - several times as they had not been previously provided as is required by law. They continued to ignore my requests until I started to get really upset." [Attachment, numbered paragraphs 1 - 3 on pages 3 and 4]. v. "Instead I received a 'draft' statement of claim saying they would sue me for defamation if I didn't agree not to contact the company and it's [sic] employees for three years. I refused to sign it. I want to be paid. They then sued me for defamation and spent some $40,000 l believe instead of paying me my workplace entitlements. So having spent this sort of money without ever picking up the telephone to sort out an employees pay you have to wonder? In their statement of claim they use my complaint to the Human Rights Commission as the basis of claiming that I had defamed the company and Mr Klaus Bartosch. My understanding of complaints to the Commission is irrespective of whether they are found to have merit you cannot vilify someone because they have complained to the commission. There have been attempts to settle providing I give up my rights to my workplace entitlements, and any workers compensation claim I may have, I must lie to a psychologist and say I only 'perceived the discrimination and bullying'" [attachment, numbered paragraphs 7 and 8 on page 4]. (h) That 1st Available provides an unhealthy and dangerous workplace environment (breach of Undertaking 18). PARTICULARS The representation was conveyed by the totality of the email and the attachment but in particular the plaintiff says that the representation is an inference arising from a combination of all of the matters in (a), (b), (f), and (g) above. (i) That 1st Available is an organisation which tolerates bullying, sexism and adverse action against employees (breach of Undertaking 34). PARTICULARS The representation was conveyed by the totality of the email and the attachment but in particular the plaintiff says that the representation is an inference arising from a combination of all of the matters in (a), (b), (f), and (g) above.

Amendments 29 March 2016 - [23] 21 February replaced by 26 February [52] (Quote by Santow J) "which would have reasonably have been available" replaced with "which would reasonably have been available" [54] Mr McKeough replaced with Mr McKeough's 31 March 2016 - added Annexure "A" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 March 2016