Chapman v Cover-More Insurance Services Pty Limited

Introduction

1. The plaintiff brings a claim for work injury damages. The plaintiff was employed by the defendant in or about April 2007. On 27 November 2012 the plaintiff suffered a stress-induced heart condition at work and was taken to hospital. She alleges that she has been unable to return to work because of her heart condition and a related psychological condition. She alleges that these conditions were caused by the bullying and harassment of her by a senior employee of the defendant in the period from September 2011 to November 2012.
2. In about August 2015 the plaintiff instructed a solicitor, Danny King, to bring proceedings in the Fair Work Commission for breach of contract and breaches of employment protections provided for in the Fair Work Act 2009. Those proceedings were resolved in or about October 2015. The terms of the settlement were reduced to writing in a Deed signed by the plaintiff and defendant on or about 2 December 2015 (the Deed).
3. The defendant contends that by executing the Deed the plaintiff released the defendant from the work injury damages claim.
4. By an Amended Notice of Motion filed on 19 February 2020, the defendant seeks the determination of the separate question: Does the deed executed by the parties on or around 2 December 2015 bar the plaintiff's claim against the defendant?

Evidence

1. The defendant relied on an affidavit of Samuel Kennedy affirmed 23 September 2019.
2. The plaintiff relied on an affidavit of Kim Dorothy Chapman (the plaintiff) affirmed 19 December 2019 and affidavit of Danny King, solicitor, affirmed 23 January 2020.
3. None of the deponents were required for cross-examination.

Factual Background

1. The plaintiff was first employed in the position of "Business Leader Insurance" for Flight Centre in April 2007.
2. On or about 4 March 2011 the plaintiff was promoted to the role of "Global Leader Flight Centre JV".
3. In or about late 2011 the plaintiff was appointed to the role of "Flight Centre Global Relationship Director". At this time the plaintiff's autonomy, responsibilities, authority and remuneration were significantly increased. The plaintiff's role was described as managing the global joint venture between Cover-More and Flight Centre and she was responsible for key aspects of the joint venture success including budgeting, marketing and to ensure profitability.
4. In or about September 2011, the defendant appointed a group CEO. As part of the structure of the joint venture the plaintiff had close contact and extensive communications with the CEO. The plaintiff alleges that the CEO undermined her position, was openly hostile towards her, bullied her and excluded her from participating in important decisions. In or about May or June 2012, the responsibility for the marketing budget was removed from the plaintiff and given to another employee. In November 2012 the plaintiff was demoted without consultation. She was informed that she would no longer report to the CEO but to the employee who was employed to take over her position.
5. On 27 November 2012 the plaintiff suffered severe chest pains whilst at work. She was taken by ambulance to St Andrew's Hospital in Brisbane and admitted to the Emergency Cardiac Unit. She was diagnosed as suffering from Takotsubo Stress Cardiomyopathy.
6. On the plaintiff's return to Sydney she was treated by Professor Kritharides, Cardiologist. In February 2013 she was referred by Professor Kritharides to a psychiatrist, Dr Kerry Neville.
7. On 18 February 2013 the defendant's workers compensation insurer, QBE Workers Compensation (NSW) (QBE), declined liability for the plaintiff's workers compensation claim. She consulted a solicitor, Peter Anjos of Byles Anjos Solicitors of Liverpool. Mr Anjos advised the plaintiff to make a formal claim by completing a worker's injury claim form, which she did on 4 April 2013. Mr Anjos submitted the claim form to QBE.
8. On 28 August 2013 QBE accepted liability for the plaintiff's workers compensation claim and she commenced receiving weekly payments.
9. In or about September or October 2013, Mr Anjos informed the plaintiff that she could obtain lump sum compensation for permanent impairment provided for by the Workers Compensation Act 1987 if she could establish that her whole person impairment was assessed at 15% or more. Mr Anjos arranged a medico-legal consultation with Dr Andrew Singer, Psychiatrist, on 13 November 2013.
10. On 4 December 2013 the plaintiff received a letter from Mr Anjos enclosing Dr Singer's report. Mr Anjos informed the plaintiff that Dr Singer had assessed her whole person impairment at 5% but stated that she had not reached maximum medical improvement.
11. Shortly afterwards, the plaintiff contacted Mr Anjos to discuss Dr Singer's opinion. Mr Anjos advised her that it was too soon to proceed with any further workers compensation claim for permanent impairment. Mr Anjos did not give the plaintiff any advice concerning the availability of or the possibility of her pursuing a work injury damages claim.
12. The plaintiff did not have any further contact with Mr Anjos after December 2013, apart from seeking his advice on a few specific occasions about difficulties she was having in undertaking a staged return to work in consultation with her rehabilitation providers.
13. In 2014 and the first half of 2015 the plaintiff remained off work and in receipt of weekly compensation payments.
14. In April 2015 the plaintiff was assessed by the rehabilitation provider as being able to return to work for limited hours. She was informed by the rehabilitation provider that they were having difficulty in securing the agreement of the defendant for her to return to work under any circumstances.
15. In May 2015 the plaintiff decided to seek advice about her employment contract. On 25 May 2015 she consulted a solicitor, Danny King, . Ms King advised the plaintiff that she was not a workers compensation lawyer. She advised the plaintiff that she believed that there were grounds to assert that the company was in breach of the employment agreement by failing to prevent harassment and by demoting her and not honouring its workers compensation obligations to provide a suitable return to work program. Ms King advised the plaintiff that she had the right to pursue a claim in the Fair Work Commission for breach of contract and for breach of various employment protections existing under the Fair Work Act 2009. Ms King advised the plaintiff to forward a letter of demand to the company and, if necessary, file an application in the Fair Work Commission. The plaintiff instructed Ms King to proceed as she had recommended.
16. Ms King sent an email to the plaintiff on 26 May 2015 confirming her advice. The plaintiff contacted Ms King and instructed her not to include in the letter of demand any reference to the settlement of her workers compensation rights.
17. On 21 June 2015 Ms King confirmed her instructions in an email to the plaintiff that the employment issues and the "injury in employment issues" were to be quarantined. Ms King understood her instructions to be to preserve whatever rights the plaintiff had in connection with her workers compensation rights and to the workers compensation payments that she was receiving.
18. On 12 August 2015 Ms King forwarded a detailed letter of demand to the defendant. In that letter Ms King relevantly alleged: 1.1 It is our view that Cover-More has failed to meet its obligations in regards to our client's employment and, as a result, is liable to her under various causes of action, including but not limited to the following: (1) Breach of contract; (2) Breach of the general protections contained in section 340 of the Fair Work Act 2009 (Cth) (the FWA); (3) Breach of worker's compensation obligations under the Workers Compensation Act 1987 (NSW) and Workplace Injury Management and Workers Compensation Act 1998 (NSW); and (4) Bullying and discrimination offences. … 7 Obligations arising under workers compensation legislation 7.1 The Workers Compensation Act 1987 (NSW) provides several protections for injured workers. 7.2 Failure of an employer to give full regard to their obligations under this legislation could result in an adverse action finding: Penglase v Allied Express Transport Pty Ltd [2015] FCCA 804. 7.3 On 20 October 2014, the date on which our client was cleared to commence a return to work program, she was eager, willing and able to return to work and actively tried to work with her contact at the insurer, medical staff and workplace rehabilitation provider to start the return to work trial. 7.4 Cover-More had been given significant prior warning that our client should be returning to work under gradual return to work arrangements. Despite having up to 10 months' notice of her upcoming return, Cover-More did not make any attempt to assist our client to return to her role, neither under the suggested 16 hours per fortnight structure nor by any other means. 7.5 Four and a half months following approval of the trial return to work program our client had a relapse. 7.6 Had Cover-More been willing to accommodate our client and assist her return to work as medically advised, this relapse might never have occurred. Had the trial program been accepted by Cover-More it is highly likely that our client would have been able to increase her work pattern to full time hours, without the need for special accommodations at all, within a relatively short period of time.
19. Ms King commenced proceedings on behalf of the plaintiff in the Fair Work Commission on 26 August 2015.
20. On 15 September 2015 the plaintiff attended Ms King's office and participated in a telephone Conciliation Conference hosted by a conciliator appointed by the Fair Work Commission. The defendant was represented by Ben Marshall, a solicitor from Arnold Bloch Liebler and Jason Maywald, a representative of the defendant. The plaintiff's evidence in these proceedings was that nothing was said on behalf of the defendant during the course of the Conciliation Conference concerning any release of it in respect of any liability it may have for any personal injury sustained by her during the course of her employment. She deposed that: "nothing was said about workers compensation, apart from Ms King asserting that the company had not complied with its obligations to provide a return to work program, as required by the Workers Compensation Act. … Ms King did say, when putting her offer, that any payment made by the defendant would have to be characterised as a genuine payment in respect of breach of contract, and not for payment of any compensation for personal injury. I did not hear any statement from the defendant's representative objecting to that assertion".
21. No settlement was reached at the Conciliation Conference, but negotiations between the parties continued and the matter was resolved in or about October 2015.
22. In about late October 2015 the plaintiff attended Ms King's office and met with Ms King and Belinda Wightley, a workers compensation lawyer that Ms King had brought in to talk to the plaintiff about her rights. The plaintiff was advised in that conference that under the terms of the draft Deed that had been provided by the defendant, the payment to be made under the Deed would not impact her workers compensation rights, nor would it impact any further claim that she might wish to bring at a future time. The employment dispute was subsequently resolved.
23. On or about 2 December 2015 the plaintiff executed the Deed. The Deed relevantly provided: BACKGROUND A. The Employee [defined to be the Plaintiff] was employed by the Employer [defined to be the defendant] from 30 April 2007, most recently in the position of Flight Centre Global Relationship Director (Employment), under a written contract of employment dated 4 March 2011 (Contract). B. The Employee has made various allegations against the Employer set out in the letter from Danny King Legal to the Employer and another, dated 12 August 2015 (Allegations) and has commenced proceedings in the Fair Work Commission (C015/522) (Proceeding). C. The Employer denies the Allegations and denies that it has any liability to the Employee. D. The Parties agree that the Employment ceased on 10 September 2015 (Cessation). E. The Parties have agreed to the settlement of all matters arising from the Employment, the Contract, the Allegations, the Cessation and the Proceeding on the terms contained in this Deed, without any concession of liability by either party. AGREED TERMS 1 Payment by Employer 1.1 As soon as practicable after receiving a copy of this Deed executed by the Employee, the Employer will: (a) pay to the Employee (less applicable taxes as required by law) an ex gratia payment of $297,836.73 (including the amount of the Employee's legal fees in relation to the Proceeding as evidenced in accordance with clause 1.2), less applicable taxes as required by law (Separation Payment); and (b) provide the Employee with a signed statement of service in the form set out in Annexure A (Statement of Service). 1.2 The Separation Payment will be characterised as a payment or reimbursement of the Employee's legal fees relating to the Proceeding up to the amount (if any) evidenced by the Employee through the provision of appropriate tax invoices upon returning an executed copy of this Deed, with the remaining balance to be characterised as an employment termination payment. 1.3 The Employee acknowledges and agrees that she is not entitled to be paid any amount in respect of the Employment, the Contract, the Allegations, the Cessation and the Proceeding, other than the payments set out in this clause 1. 1.4 The Employee acknowledges and agrees that the Employer makes the payments set out in clause 1 and provides the Statement of Service: (a) in full and final satisfaction of all of its obligations to the Employee arising in respect of the Employment, the Contract, the Allegations, the Cessation and the Proceeding; and (b) in full settlement of all Claims that the Employee has or but for the execution of this Deed may have had against the Employer, its Release Persons or any of them in relation to the Employment, the Contract, the Allegations, the Cessation and the Proceeding. 2 Employee Obligations The Employee must: (a) within seven days of the Employer performing its obligation in Clause 1, file and service a notice of discontinuance in respect of the Proceeding; (b) not make any further Claims or take any other steps in relation to the Allegations of the Proceeding, and will not procure any other person to do so; and (c) not voluntarily assist any person to make, or continue, a Claim against the Employer or any of its Released Persons, including acting as a witness; and (d) if compelled by law to act as a witness for, or to otherwise provide assistance to, any person making or continuing a Claim against the Employer or any of its Released Persons, immediately provide the Employer with written notice of the type, scope and proposed date of any assistance to be given (if circumstances permit, as such information may not be made available, or time may not be given), provided that all such provision of information will be on the basis of a once-off charge of $600, to compensate for time and expenses for compliance with this obligation, payment within 1 business day of such assistance being rendered. 3 Release 3.1 Release by Employee (a) The Employee hereby irrevocably and unconditionally release and forever discharge the Employer and is Released persons from all Claims (including without limitation the Allegations) which the Employee has or but for the execution of this Deed may have had in relation to the Employment, the Contract, the Allegations, the Cessation and the Proceeding, save for any claims pursuant to the Workers Compensation Act 1987 (NSW) or the Superannuation Guarantee (Administration) Act 1992 (Cth). (b) The Employee consents to the Employer or any of its Released Persons pleading or tendering this document in any proceedings to which the terms of this document are relevant. 3.2 Release by Employer The Employer hereby irrevocably and unconditionally releases and forever discharges the Employee from all Claims which the Employer has or but for the execution of this Deed may have had in relation to the Employer, the Contract, the allegations, the Cessation and the Proceeding. 3.3 No release from obligations under this Deed For the avoidance of doubt, the releases under clauses 3.1 and 3.2 do not extend to Claims in relation to a breach of this Deed. … 6 Warranties and undertakings 6.1 The Employee warrants and represents that: (a) the Employee has entered into this Deed voluntarily and without any duress from the Employer; (b) the Employee has read and understood the terms of this Deed; (c) the Employer, its officers, employees or agents have not made any promises, representations or inducements or been a party to any conduct material to the Employee entering into this Deed other than as set out in this Deed; (d) the Employee has had a full and proper opportunity to obtain independent legal advice concerning the terms and effect of this Deed; (e) the Employee has returned all property belonging to the Employer or its Released Persons, or any of them, in her possession or control by the date of this Deed; and (f) the Employee is aware that the Employer is relying on these warranties and undertakings. 6.2 The Employee undertakes and agrees that: (a) the Employee will comply with her continuing obligations in relation to the Employment, including, but not limited to, her continuing obligations under the Contract and to keep confidential all information about the Employer and/or its clients that is not in the public domain, and not to use or disclose any such confidential information; and (b) the Employee will not represent herself as being employed by or as having any continuing association with the Employer or any or its Released Persons. 7 General … 7.4 Severability If any provision of this Deed is held to be invalid or unenforceable for any reason, it will be deemed to be severable and will not affect the remaining provisions of this Deed. … 7.8 Entire Agreement This Deed is the whole agreement between the Parties with respect to its subject matter and replaces any prior agreement, arrangement or understanding with respect to its subject matter, save for the relevant provisions of the Contract that continue to apply to the Employee. … 8 Definitions and interpretation 8.1 In this Deed, unless the context requires otherwise: "Claims" includes any claim, notice, demand, costs (including legal costs and expenses), debts, dues, liabilities, damages, losses, action, proceeding, litigation, investigation or judgment (arising at common law, in equity or, to the extent permitted, under any statute), however it arises, present or future, fixed or unascertained, actual or contingent. … 8.2 Words and expressions In this Deed, unless the context requires otherwise: … (g) the Background paragraphs of this Deed are adopted as and form part of the Deed; … (n) no rule of construction applies to the disadvantage of a Party because that Party was responsible for the preparation of this Deed or any part of it.
24. On 4 May 2017 the plaintiff was examined by Dr Katie Dimarco, Psychiatrist, at the request of QBE. Dr Dimarco assessed the plaintiff as having sustained a 19% whole person impairment. The plaintiff was provided with a copy of Dr Dimarco's report and decided to consult a lawyer.
25. In June 2017 the plaintiff consulted Richard Brennan, a partner of McNally Jones Staff. The plaintiff was advised that she had exceeded the relevant threshold to obtain compensation pursuant to s 66 of the Workers Compensation Act 1987 for psychiatric injury. Mr Brennan advised the plaintiff it would be prudent to obtain a second opinion. Mr Brennan arranged a medico-legal consultation for the plaintiff with Dr Selwyn Smith, Psychiatrist. On 13 September 2017 Dr Smith assessed the plaintiff's whole person impairment at 24%.
26. On 15 June 2017 Mr Brennan referred the plaintiff to his partner, David Trainor, for advice concerning a possible work injury damages claim. Mr Trainor advised the plaintiff that it was arguable that the defendant had breached its duty of care and there were grounds for that claim to be investigated. He advised the plaintiff that if she could establish negligence that she would be entitled to damages for past and future economic loss.
27. The plaintiff's section 66 claim was determined by the Workers Compensation Commission on 6 February 2018. The plaintiff then instructed Mr Trainor to proceed with a work injury damages claim.
28. The plaintiff's evidence in these proceedings was that she was unaware, prior to conferring with Mr Trainor that she had the right to pursue a work injury damages claim.
29. The plaintiff gave notice of her work injury damages claim through her solicitors in a letter dated 19 April 2018. The plaintiff filed a Statement of Claim on 3 September 2019.
30. The defendant filed its Defence on 11 September 2019. Paragraph 7 of the Defence expressly relies on the Release provided for in clause 3.1 of the Deed.

Relevant Law

1. Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all of the background knowledge which would reasonably have been available to the parties at the time of entering into the contract: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at [40]. The purpose of the contract, i.e., what the parties were trying to achieve, is important: Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337.
2. Evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the meaning is ambiguous or susceptible of more than one meaning: Codelfa at 352, per Mason J, confirmed by the High Court as binding authority in Western Export Services Inc v Jireh International Pty Ltd [2011] HCA 45 at [3]-[5].
3. "Admissible" in this context means use rather than receive into evidence: Cherry v Park-Steele [2017] NSWCA 295 at [69]. In other words, ambiguity is not required to be established as a gateway, before evidence of surrounding circumstances can be considered: Cherry at [71]. If a written contract is ambiguous, evidence of surrounding circumstances may be tendered and used to assist in its construction: Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 1991 ALJR 496.
4. The reference to "plain meaning" by Mason J reflects the primacy of the text of a written contract. The start and end points of the construction of a written contract is the language chosen by the parties to record their agreement: Cherry at [72], Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 at 109 per Gibbs CJ and Mainteck Services Pty Ltd v Stein Hurley SA (2014) 89 NSWLR 633 at [74] per Leeming JA.
5. The meaning which a document would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammar; the meaning of a document is what the parties using those words against the relevant background would have reasonably understood them to mean: Investors Compensation Scheme v West Bromich Building Society [1998] 1 WLR 896 per Lord Hoffman.
6. The rule that words should be given their "natural and ordinary meaning" reflects the common sense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents. Even if something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had: Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429.
7. Evidence of surrounding circumstances cannot be used to detract from the contractual text used by the parties. If, after considering a contract as a whole and the background circumstances known to both parties, a court concludes that the language of a contract is unambiguous the Court: 1. must give effect to that language unless to do so would give the contract an absurd operation: Newey v Westpac Banking Corporation [2014] NSWCA 319 at [91]; and/or 2. cannot depart from the ordinary meaning of the words because it regards the result as inconvenient or unjust: McGrath v Suresteps; Suresteps v HIH Overseas Holdings Ltd (in Liq) (2011) 81 NSWLR 690 at [17].
8. In Karam v ANZ Banking Group Limited & Ors [2001] NSWSC 709 at [406] Santow J set out the principles applicable to construing releases or purported releases by reference to the following propositions: (1) In construing a release... the 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 that they signed the document containing the release: ICS v West Bromwich BS [1998] 1 All ER 98 per Lord Hoffman at 114. (2) In order for the Court to give effect to what in an objective sense the contracting parties intended, it is clear that a party may agree to release claims or rights of which it is unaware and of which it could not be aware, provided clear language is used to make plain that that is its intention: see Salkeld v Vernon [1758] EngR 153; (1758) 1 Eden 64, 28 ER 608 per Lord Keeper Henley. (3) Consistent with this emphasis on intention, general words in a release are limited to what was specifically in the contemplation of the parties at the time when the release was given: Grant v John Grant and Sons Pty Ltd (1954) 91 CLR 112 per Dixon CJ, Fullagar, Kitto and Taylor JJ; Iletrait Pty Limited v McInnes (NSWCA, 17 April 1997, unreported) per Priestley JA with whom Grove AJA and Handley JA agreed). (4) Although there are no special rules of construction, such as a contra proferentem requirement, in the absence of clear language courts have been slow to infer that a party intended to surrender rights and claims of which it was unaware and could not have been aware: BCCL v Ali [2001] 1 All ER 961 at 966 per Lord Bingham, (contrast Lord Nicholls in BCCL v Ali(supra) at 971-72 who was of the view that for the purposes of construction a general release is simply a term in the contract). (5) Although each release should be considered against its own matrix of facts, an example of this line of "cautionary principle" (Lord Bingham's phrase) is the frequently cited judgment of the High Court of Australia in Grant v John Grant & Sons Pty Limited (supra), where Dixon CJ, Fullagar, Kitto and Taylor JJ (at 125) referred with approval to the proposition put by Sir Frederick Pollock in his "Principles of Contract" (Stevens: London, 1950) 13th ed at 412, that "in equity a release shall not be construed as applying to something of which the party executing it was ignorant." (6) Despite the fact that, strictly speaking, releases are subject to no special rules of construction, a transaction in which one party agrees in general terms to release another from any claims upon it does have special features: BCCL v Ali at 984 per Lord Hoffman. (7) In such circumstances it may well be appropriate to imply an obligation upon the beneficiary of such a release to disclose the existence of claims of which it actually knows and which it also realises might not be known to the other party: BCCL v Ali at 984 per Lord Hoffman, for such an obligation is consistent with a concern to protect parties from sharp practice, by preventing advantage being taken of the known ignorance of the conceding party; BCCL v Ali per Lord Nicholls at 973.
9. General words of release in a Deed are confined to matters mentioned in any recitals: Grant at 123. If the recitals are clear and the operative part of the Deed is ambiguous, the recitals govern the construction. If the recitals are ambiguous, and the operative part is clear, the operative part must prevail. If both the recitals and the operative part are clear but they are inconsistent with each other, the operative part is to be preferred: Ex parte Dawes (1886) 17 QBD 275 at 286 and 298, applied in Macintosh v Beberfield and Co (1911) 12 CLR 139 at 161 and OneSteel Manufacturing Pty Ltd v Bluescope Steel (AIS) Pty Ltd (2013) 85 NSWLR 1 at [63]. Ambiguity in this context means that the words in question are capable of more than one meaning or there is some doubt as to the meaning of the words including the scope of apparently general words: Walsh v Trevanion (1850) 15 QB 733 at 751 and Rooke v Lord Kensington (1856) 2 K & J 753 at 769.

Consideration

1. The determination of the separate question involves the resolution of three sub-questions: 1. Are the plaintiff's work injury damages proceedings a Claim in relation to the Employment, the Contract, the Allegations, the Cessation and the Proceeding? 2. Do the plaintiff's work injury damages proceedings come within the exception that they are a claim pursuant to the Workers Compensation Act 1987 (NSW) (the Act)? 3. Do the general words of the Release operate to exclude a cause of action that the plaintiff did not have in mind at the time of executing the Deed?

The first and second sub-questions

1. The first and second sub-questions require the interpretation of clause 3.1 of the Deed and it is convenient to deal with them together.
2. The plaintiff's work injury damages proceedings come within the definition of "Claims" stated in clause 8.1 of the Deed.
3. The intent of the Release provided for by clause 3.1(a) of the Deed is plainly expressed to refer to any present or future claim relating to the list of defined terms that the plaintiff had or may have had at the time of executing the Deed save as for two specified exceptions. In order for the Release to operate there must be sufficient connection between the claim and the list of defined terms and the claim must not come within an expressed exception.
4. The Release is limited by the words that the Claims must be "in relation to the Employment, the Contract, the Allegations, the Cessation and the Proceeding". The first point to note is that the list of the defined terms in the Release is conjunctive. The same conjunctive list appears in clause E of the Background. From this I infer that the word "and" in the list was used deliberately and not by mistake and it cannot be simply replaced with "or" to make the list disjunctive: Gill v Department of Industry Technology and Resources [1987] VR 681. It follows that in order for a claim to be released that it must relate to each of the defined terms.
5. The words "in relation to" are usually used to require a sufficient or material connection between the joined subject matters, rather than a causal one: J & G Knowles and Associates Pty Ltd v Commissioner of Taxation (2000) 96 FCR 402 at 410. The words "in relation to" have a very wide meaning but do not extend to any relationship, however tenuous: Technical Products Pty Ltd v State Government Insurance Office (Qld) (1989) 167 CLR 45 at 51. The expression is extremely wide but also vague and indefinite, it requires some relationship but the plane on which that relationship is required is unspecified: Tooheys Ltd v Commissioner of Stamp Duties (1961) 105 CLR 602 at 620 per Taylor J. It does not equate to "referring to" and the relationship must be established on some more substantial ground: Tooheys at 620. The degree of connection is determined by the context: Travelex Ltd v Federal Commissioner of Taxation (2010) 241 FCR 510 at [25]. There is nothing in the relevant context to suggest that the words "in relation to" were not intended to have a wide operation or that an indirect, but relevant, connection would not be a sufficient relationship for present purposes.
6. The Release can only operate by reference to defined terms in the Background, which is expressly specified to be part of the Deed: clause 8.2. Employment is defined by reference to the plaintiff's employment as the Flight Centre Relationship Director from 4 April 2007. Contract is defined by reference to the written contract of employment dated 4 March 2011. Allegations are defined by reference to the allegations set out in Ms King's letter to the defendant dated 12 August 2015. Proceeding is defined by reference to the particular proceedings in the Fair Work Commission. Cessation is defined by reference to the plaintiff's termination of employment on 12 September 2015.
7. The plaintiff's work injury damages claim concerns the nature and conditions of her employment with the defendant, which was the subject of a specific employment contract. It also relies on the allegations that she was bullied and/or harassed during the course of her employment and that as a result, she has suffered psychological injury and became incapacitated for work for the defendant or another employer. The plaintiff does not allege in her work injury damages claim that her loss was caused by the defendant's breach of the employment contract. Rather, she alleges that the defendant was negligent by failing to provide a safe system of work. The Fair Work Commission does not have jurisdiction to deal with the work injury damages proceedings. In the Fair Work Commission the plaintiff sought damages for breach of the employment contract or flowing from its repudiation by the defendant and damages for breach of the general protections provided for by section 340 Fair Work Act 2009 (Cth), including a claim for adverse action based on the failure of the defendant to facilitate the plaintiff's return to work co-ordinated by the rehabilitation provider.
8. The defendant submitted that the plaintiff's work injury damages claim related to the Employment under the Contract and was based on the Allegations and would thereby satisfy the terms of the Release. This submission treats the list of defined terms as disjunctive, which for the reasons given, it is not, and it cannot be interpreted as such, even if it would give rise to unpalatable results: Victims Compensation Fund v Brown and Others (2002) 54 NSWLR 668.
9. I am satisfied that it is established that the plaintiff's work injury damages proceedings are a claim in relation to her Employment, the Contract, the Allegations and the Cessation as defined in the Deed. I cannot discern a relationship between the Proceeding and the plaintiff's work injury damages proceedings. Accordingly, I am not satisfied that the plaintiff's work injury damages proceedings satisfy the pre-conditions of the Release.
10. For these reasons the answer to the first sub-question is: No.
11. The Release is subject to an exception "for any claims pursuant to the Workers Compensation Act 1987 (NSW)". There is ambiguity in the expression of the release given by the plaintiff relating to the extent of the exception to it. The defendant contended that the exception should be limited to any claim for compensation payments provided for by the Act because the Act does not create the cause of action that underlies the plaintiff's work injury damages claim: Buswell v TAL Life Ltd [2018] NSWSC 1507 at [14]. The plaintiff contended that it is not apparent that the words used limit the exception to claims for compensation payments provided for by the Act and that the plaintiff's work injury damages claim is a claim conducted in accordance with the Act.
12. The words "pursuant to" are commonly used to indicate a relationship with a statute: Perry Herzfeld and Thomas Prince, Interpretation, Second Edition, Thompson Reuters, Sydney, 2020 at 92 [4.360]. Those words often have the same meaning as "by" or "under" a statute where the intended meaning is "in accordance with" the statute: R v Tkacz (2001) 25 WAR 77 at [23]. This corresponds with the Macquarie Dictionary meaning of "pursuant" as "(a) proceeding conformably with, (b) according to, and (c) in a manner conformable with" and the Oxford English Dictionary meaning of "in accordance with, consequent and in conformance to".
13. The Act provides for the entitlement to no fault compensation to workers that receive an injury where the worker's employment was a substantial contributing factor to the injury. The Act also provides for the types of compensation payable and mechanisms to calculate the amount of compensation payable.
14. Part 5 of the Act also regulates the bringing of work injury damages claims by the modification of the assessment of damages for such claims and the introduction of procedural requirements to be satisfied before such claims can be litigated. A work injury damages claim pursued other than in accordance with those procedural requirements is liable to be struck out: Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364 at [36]. Section 151H of the Act provides that no damages may be awarded unless the injury results in a degree of permanent impairment of at least 15%, which is to be calculated in accordance with section 322 Work Injury Management Act and Workers Compensation Act 1998. In a work injury damages claim, if the plaintiff's injury does not result in a degree of permanent impairment of more than 15%, the plaintiff cannot be awarded damages and the proceedings must be dismissed.
15. From an objective standpoint, it is clear that the parties intended the plaintiff's ongoing rights to compensation provided for by the Act were to be unaffected by the Release. The defendant conceded that this was correct. This is supported by the operation of the Act in that the parties could not compromise the plaintiff's rights to future compensation payments other than in accordance with Division 9 of Part 3 of the Act.
16. The parties were free to choose the words of the Release that they agreed on. The exception could have been expressed "save for claims for compensation payments provided for by the" Act. However, the parties chose and agreed on a less demanding relationship between the claim and the statute.
17. I am satisfied that the plaintiff's work injury damages proceedings come within the exception to the Release because they have been brought in accordance with the requirements of the Act and are thereby brought pursuant to the Act.
18. For these reasons the answer to the second sub-question is: Yes.

The third sub-question

1. For the reasons given, the parties did not intend that the Release would affect the plaintiff's right to compensation payments under the Act. Both parties knew that she was in receipt of those compensation payments during the course of the negotiations and it was intended that they would continue.
2. There was no mention during the course of the negotiations of personal injury or the notion of a work injury damages claim. The negotiations were not concerned with the plaintiff's incapacity for work as a result of her psychological or physical condition. The payment made to the plaintiff was stated to be for the payment of her legal costs and the balance was to be considered as a separation payment.
3. I am satisfied that the parties did not intend for the plaintiff to release the defendant from any liability it may have to her in relation to a work injury damages claim.
4. The plaintiff's evidence relevant to the third sub-question was not challenged. Accordingly it can be accepted that the plaintiff was unaware at the time that she executed the Deed that she knew that she was giving up a work injury damages claim because: 1. she had never been given legal advice about her rights to bring a work injury damages claim; and 2. she had no entitlement to do so because there was no evidence at that time that her injury had resulted in a degree of permanent impairment of more than 15%.
5. I am satisfied that the plaintiff was not aware and could not have been aware that she was giving up her right to make a work injury damages claim by executing the Deed containing the Release.
6. In construing the general words of the Release, and if I am wrong on the first two sub-questions, I am not satisfied that the Release operates to release the defendant from liability for the plaintiff's work injury damages claim.
7. For these reasons, I would answer the third sub-question: No.

Conclusion on the separate question

1. For the reasons given, the separate question should be answered: No.

Orders

1. The orders I make are as follows: 1. The separate question should be answered "No". 2. The Amended Notice of Motion filed 19 February 2020 is dismissed. 3. The defendant is to pay the plaintiff's costs of the Amended Notice of Motion on the ordinary basis, as agreed or assessed. 4. I grant the parties leave to approach my Associate to relist the matter if an alternate costs order is sought.

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