The applicant's prospects in the litigation
26 The applicant's prospects in the proceedings are generally a relevant consideration, although I am mindful of the difficulties in assessing these in detail prior to hearing: see Equity Access Ltd v Westpac Banking Corporation (supra) at 50,636. There are two main issues in these proceedings.
27 It is not entirely clear whether it is part of Mr Chang's case in the appeal proceedings that the AAT decision should be set aside for want of procedural fairness. On the basis it was, counsel for Comcare submitted that Mr Chang would have to establish that the Tribunal was on notice that it would have been unfair to Mr Chang to have proceeded as it did on the afternoon of 20 November 1998. Reference was made to Titan v Babic (1994) 49 FCR 546, Sullivan v Department of Transport (1978) 20 ALR 323, Fitzwarryne v Comcare [1999] FCA 409, R v Moodie; ex parte Mithen (1977) 17 ALR 219 and In the Marriage of MI and A Tynan (1992) 16 FamLR 621. Counsel for Comcare submitted that Mr Chang had not provided any evidence as to why the Tribunal should have been on notice of any unfairness. Indeed, the opposite was true. As is evident from the transcript set out above, the Tribunal took Mr Chang through the proposed consent orders and Mr Chang signalled in unambiguous terms that he understood them. Counsel for Mr Chang did not take issue with these submissions. In my opinion, Mr Chang would have formidable difficulties in establishing a denial of procedural fairness.
28 The next basis on which the consent orders are challenged is that Mr Chang never truly agreed to the terms of settlement. Mr Chang relies on the grounds of duress and mental incapacity. Turning first to duress, the duress identified by Mr Chang was the threat of proceedings continuing, the alleged anger and aggression of Mr Snell, and the applicant's weakened psychological state. Counsel for Mr Chang submitted that, taken together, these constituted illegitimate pressure amounting to duress. A threat of prosecution is not by itself sufficient to warrant a finding of duress: see Scolio Pty Ltd v Cote (1992) 6 WAR 475. It is unlikely, in my opinion, that Mr Chang will be able to demonstrate, having regard to the material before me, that the settlement was reached because he had been subjected to duress.
29 Turning now to mental incapacity, counsel for Mr Chang submitted that it was necessary for Mr Chang to both show that he was incapable of understanding the nature of what he was doing by making the agreement, and that those acting for Comcare knew this. Reference was made to Gibbons v Wright (1954) 91 CLR 423 at 437 and 441. It was submitted that, on the basis of Mr Chang's affidavits, Dr Knox's medical reports, the applicant's exhaustion after four days of hearing and two days of cross-examination, and the circumstances that Mr Chang was acting for himself and was subject to pressure by the other side, Mr Chang did not understand the general nature of what he was doing by signing the agreement. However, it was accepted by Mr Chang's counsel that at present there is no direct evidence that those acting for Comcare knew of any incapacity on the part of Mr Chang. Indeed, in paragraph 6 of his affidavit dated 30 September 1999, Mr Snell states that at no stage did he observe Mr Chang to behave "in a way which indicated, indeed suggested, that he did not give his informed consent to the settlement of the proceedings".
30 Counsel for Comcare submitted that the high point of the applicant's claim is the opinion of Dr Knox that Mr Chang "was not in a fit mental state to fully appreciate the consequences of his decision to accept a settlement". It was submitted that this does not satisfy the test for incapacity established in Gibbons v Wright (supra), namely whether Mr Chang was incapable of understanding the nature of what he was doing. It was submitted that Mr Chang was afforded ample opportunity to raise any lack of consent when he was taken through the terms of the settlement by the Tribunal. Counsel for Comcare and the solicitor appearing for the Commonwealth also drew my attention to Mr Chang's requests to the Commission in the days following the Tribunal's decision, which I described earlier under the heading "Background", for details of his voluntary redundancy entitlements and for payment of the entitlements into a nominated bank account. It was submitted that this behaviour is inconsistent with the applicant's avowed incapacity. Counsel for Mr Chang submitted that inconsistency can be resolved by adopting the view that Mr Chang wished to affirm the voluntary redundancy component of the settlement but to have the workers compensation component set aside. However, as counsel for Comcare pointed out, it is difficult to accept that Mr Chang had the mental capacity to consent to one component of the agreement, but not to another. It is, in my opinion, unlikely that Mr Chang will be able to establish that when he was suffering from mental incapacity he entered the agreement.