Murray Valley Aboriginal Cooperative Ltd v Havea [2020] VSCA 243

ACCIDENT COMPENSATION - Damages - Appeal against assessment of damages - Jury awarded $30,000 damages for pain and suffering and $30,000 for economic loss - Whether amounts awarded manifestly inadequate - Verdict reasonably open to jury on the evidence - Leave to appeal refused.

COSTS - Jury verdicts for pain and suffering damages and economic loss damages below threshold under s 134AB(22) Accident Compensation Act 1985 - Parties ordered to bear own costs at trial - Statutory offer and counter offer - Construction of statutory offer - Whether offer of zero a valid statutory offer - Whether costs of proceeding governed by s 134AB(27)(b) or s 134AB(28)(a) - Legislation permits statutory offer of zero - Section 134AB(27) applied - No error in costs order - Leave to appeal refused - Accident Compensation Act 1985 s 134AB.

1 Marie Havea ('the plaintiff') commenced proceedings in the County Court claiming damages against her former employer, the Murray Valley Aboriginal Cooperative Ltd ('the defendant'), in respect of the injury she suffered in the course of her employment, which, she alleged, was caused by bullying she experienced at the hands of a director of the defendant.

2 At the trial, the jury returned a verdict by which it found that the plaintiff was bullied or harassed by the director, and that that bullying and harassment was in her role as a director of the defendant. The jury assessed the plaintiff's pain and suffering damages at $30,000 and economic loss damages at $30,000. As at the date of the verdict, the plaintiff's weekly payments of compensation totalled $112,416. As a consequence of the threshold for those heads of damages prescribed under s 134AB(22) of the Accident Compensation Act 1985 ('the Act'), the amounts of damages awarded to the plaintiff were each reduced to $0.00. After hearing argument concerning the effect of a pre-litigation offer made by the defendant, the judge ruled that each party should bear its own costs pursuant to s 134AB(27)(b)(ii) of the Act.[1]

3 Accordingly, the judge made the following orders:

1. Judgment for the defendant, the jury having assessed damages:

(a) for pain and suffering at $30,000 reduced by s 134AB(22) of the Accident Compensation Act to $0.00; and

(b) for economic loss at $30,000, reduced by s 134AB(22) of the Accident Compensation Act to $0.00.

1. Each party bear its own costs pursuant to s 134AB(27)(b)(ii) of the Accident Compensation Act.

4 The plaintiff seeks leave to appeal from those orders on two grounds:

1. The primary judge erred in law by failing to discharge the jury having regard to comments made by Senior Counsel for the [defendant] in his opening address to the jury.
2. The verdict of the jury on the claim for pain and suffering and economic loss damages was manifestly inadequate, contrary to the evidence and the weight of the evidence.

5 The defendant seeks leave to appeal the costs ruling by the judge on one ground, namely:

The trial judge erred by holding that a statutory offer of zero was 'not a statutory offer' ... and was not an offer to which section 134AB(28)(a) of the Accident Compensation Act 1985 (Vic) applied ...

6 The defendant corporation was established in the 1970s. It provides a range of services to the community in the Robinvale area, including housing, health, childcare, home and community care for elderly persons and people with disabilities in the community. It is and has been the biggest employer of Aboriginal people in Robinvale.

7 The plaintiff was born in July 1971. She is married and has three children. The plaintiff had a longstanding connection with the defendant. She first worked for the defendant as a teenager through a work experience program while she was in high school. Subsequently, she worked off and on for the defendant for more than two decades.

8 In August 2013, the plaintiff made a successful application to the defendant to be employed as the Coordinator of the Robinvale Euston Festival Healthy Living ('REFHL') program, and commenced her employment in that role on 25 September 2013. She was employed in that program for three days each week. The remuneration was $598.20 gross per week. Her employment involved her working with students at three local schools. The REFHL program aimed to build the capacity of the local community, and to promote social and emotional wellbeing and enhanced cultural safety for children and young people, by using performing and visual arts, and involving the schools with artists, health professionals, community workers and Elders. The program was primarily funded by the Royal Children's Hospital (Melbourne) and the Robinvale District Health Service.

9 At the time the plaintiff commenced her employment with the defendant, Ms Jenny Whitton ('Ms Whitton') was, and for many years had been, a member of the board of the defendant. The plaintiff gave evidence of a number of interactions between her and Ms Whitton between September 2013 and February 2014, in which Ms Whitton swore profusely at her, accused her of being a drug addict and a drug dealer, and told her that Ms Whitton would have her sacked. In her evidence, Ms Whitton denied abusing the plaintiff in that way.

10 In January 2014, Ms Whitton telephoned Mr John Lane ('Lane'), the state-wide artistic coordinator for the 'Festival for Healthy Living' of the Royal Children's Hospital. She told Lane that the plaintiff should not be employed on the REFHL program because she was on drugs and selling drugs. Lane contacted Mr Phil Egan ('Egan') who was the Chief Executive Officer of the defendant, and told him of the content of the telephone conversation that he had had with Ms Whitton. Following that discussion with Lane, Egan informed the plaintiff of the content of the telephone conversation that Ms Whitton had had with Lane. As a consequence of the conversation, the plaintiff claimed that she suffered emotional distress, for which she consulted her general practitioner. She ceased work with the defendant between approximately 24 February 2014 and May 2014. The plaintiff returned to work on modified duties in about later May 2014, and was made redundant on 15 August 2014.

11 The plaintiff claimed damages against the defendant on two bases. First, she claimed that she had been subjected to direct and indirect verbal abuse, aggressive comments and bullying by an employee and/or officer of the defendant, namely Ms Whitton, for which the defendant was vicariously liable. Secondly, the plaintiff claimed that her injuries were caused by the negligence of the defendant. By its defence, the defendant denied that the plaintiff was subjected to abuse, aggressive comments and/or bullying by Ms Whitton. It admitted that in late January 2014 Ms Whitton telephoned Lane and said that the plaintiff was using and selling drugs and that she should not be working with children. It denied that that conduct by Ms Whitton was in her capacity as a director of the defendant.

12 Before the proceeding was issued, the parties made offers in accordance with s 134AB(12) of the Act. In June 2017, the defendant's solicitors served a statutory offer for the purposes of s 134AB(12)(b). The amount in the statutory offer was '$0.00'. Subsequently, the plaintiff's solicitors sent to the defendant's solicitors a letter rejecting the defendant's offer, and serving a statutory counter offer for the purpose of s 134AB(12)(c). The amount of the counter offer was $135,000.

13 The trial of the proceeding commenced in late August 2019. On the eighth day of the trial, senior counsel for the defendant made an opening address to the jury. In the course of that address senior counsel told the jury that Ms Whitton had learned of the allegations of drug dealing and drug use against the plaintiff from a person, Barbara Egan, who was not available to be called as a witness. As a consequence, senior counsel for the plaintiff made an application that the jury be discharged. After hearing submissions on that day, and on the following day, the judge gave a ruling that the jury should not be discharged.[2] That ruling was the subject of ground 1 of the application by the plaintiff for leave to appeal.

14 At the conclusion of evidence, final addresses and the judge's charge, the jury, after deliberation, delivered the following verdicts:

Question 1: Between 25 September 2013 and 7 March 2014, was there any bullying or harassment of the plaintiff by Jenny Whitton? Yes.

Question 2: Was any of the bullying or harassment by Jenny Whitton in her role as director of the defendant? Yes.

Question 3: Did the plaintiff suffer injury, loss, and damage as a result of the conduct? Yes.

Question 4(a): Between 25 September 2013 and August 2014, was there negligence on the part of the defendant? No.

Question 4(b): If yes to 4(a), was the negligence a cause of the plaintiff's injury loss and damage? - not answered by reason of the verdict on Question 4(a).

Question 5(a): In what sum do you assess the plaintiff's damages for pain and suffering? $30,000.

Question 5(b): In what sum do you assess the plaintiff's damages for economic loss? $30,000.

15 In the trial, a number of issues were explored in the course of the evidence which are not relevant to the present application. In order to consider the two grounds relied on by the plaintiff, it is nevertheless necessary to summarise the salient aspects of the evidence in a little detail.

16 The principal witness in the trial was, of course, the plaintiff. In her evidence, she said that she had been employed by the defendant, in various capacities, for most of her working life. She had also twice been a director of the defendant. The plaintiff had attained educational qualifications in a number of areas, including a certificate 3 in conservation and land management, and a certificate 4 in Aboriginal cultural heritage management.

17 The plaintiff gave evidence that she had previous health issues. Between 2001 and 2005, she was prescribed antidepressant and other medication by her general practitioner, including Temazepam and Tramadol. In 2007, she underwent a triple heart bypass operation. Since then she had suffered from angina and rheumatic heart fever.

18 The plaintiff said that she had known Ms Whitton for a long time. Their relationship had been problematic since 2003. In 2009, an incident occurred between them which led to the plaintiff being charged with assault. On that occasion, Ms Whitton had threatened and abused the plaintiff, threatening to kill her and to get rid of her. The plaintiff said that Ms Whitton then threw punches at her, which she blocked, and that as a result of the ensuing altercation she was charged with assault. She was placed on a diversion program by Robinvale Magistrates' Court. The plaintiff stated that, due to the issues that she had experienced with Ms Whitton, at one stage she sought and obtained an apprehended violence order against her for a period of either six months or twelve months.

19 The plaintiff gave evidence of an incident involving her at the defendant's premises in 2011. On that day, she had been 'disrespected' several times. As a result, she endeavoured to remove photographs of her ancestors which were on the wall of the defendant's premises. However, due to her distress, she dropped them and they broke. As a result of the incident, she was interviewed by police, but she could not remember if she was taken to court.

20 The plaintiff then described her role as the coordinator of the REFHL program with the defendant. In that capacity, she ordinarily spent two days per week at the schools, and one day each week in the office. She enjoyed her work and enjoyed spending time with the students. However, during that period, she had a number of interactions with Ms Whitton. On one occasion, in September 2013, the plaintiff was in the kitchen making a cup of tea. Ms Whitton said to her 'Sissy [referring to the plaintiff by her nickname] I've fucking told you, I warned you ... you'll never work here again when - I'll get you sacked.'

21 The plaintiff stated that that type of abuse by Ms Whitton recurred on a number of occasions, both in the office and also in telephone calls between them. On those occasions, Ms Whitton said to her words to the effect 'You're a fucking slut, I told you you're not working here. I'm going to do everything I can to get rid of you.'

22 In February 2014, Egan told the plaintiff that he had received a telephone call from Lane. He said that Lane told him that Ms Whitton had accused her of being a drug addict, a drug trafficker and a drug dealer. The plaintiff said that she was very disturbed by what Egan had told her. As a result, she went to her general practitioner, Dr Jose Omotoso who gave her some medication. She also wrote a letter to the defendant dated 18 February 2014 (which was tendered in evidence) stating that she had received a telephone call from Lane informing her that Ms Whitton had alleged that she was a drug addict and should not be employed by the defendant.

23 The plaintiff said that when she spoke to Egan he told her to go home because he was unable to protect her from Ms Whitton. As a result, she remained off work and tendered a claim form dated 25 February 2014. She returned to work for a short time in late May but was uncomfortable and frightened. Subsequently, on 1 July 2014, when she was walking into the administration building of the defendant with her mother, Ms Whitton, who was walking past them, abused the plaintiff's mother and said 'Your daughter will never work here again' and they could both go and 'fuck' themselves. As a consequence, the plaintiff felt at a 'very low point'. She left work because she felt it was not safe for her to be there. She subsequently left town for twelve months and lived in Darlington Point where her husband Siselo Havea worked on an almond farm. The plaintiff was made redundant in August 2014.

24 At that time, the plaintiff was undertaking a certificate 4 qualification in Aboriginal cultural heritage management at La Trobe University. She completed that certificate in late 2014. However, since then, she had felt very low. By then she and her husband had returned to their home in Bogajim Road, Robinvale. The plaintiff stayed in bed for at least 12 months, not showering, eating or brushing her hair. She lost weight, was unable to control her feelings and had outbursts of anger. As a consequence, she separated a few times from her husband because she could not control her emotions. Her concentration levels were poor and she had difficulty sleeping. She saw her general practitioner, Dr Lucca in Robinvale. When he retired she then saw Dr Jane Neyland, who prescribed diazepam to help her cope with her anxiety.

25 The plaintiff then gave evidence as to some incidents that occurred at that time and during the ensuing years. At one point the police conducted a raid at her home. As a result, she was interviewed by the police and charged with cultivating and possessing marijuana. The charge of cultivation was withdrawn, and she pleaded guilty to possession and was placed on diversion. The plaintiff denied that she had previously seen the plant which was the subject of the charge. She pleaded guilty on the advice of her lawyers on the basis that the plant was found on her property. In later evidence, it was suggested that Ms Whitton had prompted the police to raid her premises.

26 On another occasion, the plaintiff was experiencing problems with the quality of the tank water that was used at her premises. She was not feeling mentally well, and she asked her daughter Alice to deal with the issue. When problems arose, the plaintiff sent a text to Vicki Dalton, an employee of the defendant, stating that she wanted some respect towards her daughter, and if they 'messed' with her one more time, 'see if I don't come for you and Steven'. In response, the plaintiff received a letter from the defendant telling her not to come to the defendant's premises. Two days later, the plaintiff, in a fit of anger, attended at the premises, and damaged a vehicle there with a log splitter. She was charged over the incident and pleaded guilty (to a charge of wilful damage) before the Koori court.

27 The plaintiff stated that she continued to see Dr Neyland for treatment. She attempted to undergo counselling, but she was not comfortable with it. Instead, she went bush with her Elders and underwent a traditional cleansing smoking ceremony conducted by them. She said she talked to the Elders about what she was going through.

28 The plaintiff stated that she occasionally used marijuana between August 2013 and August 2014. Her use of it was initially infrequent, but it increased during that time. She denied trafficking in drugs and said that the accusation that she did so had made her feel like 'scum'. The plaintiff said that she had suffered nightmares about what had happened with Ms Whitton. She continued to suffer from lowered concentration. She used to very much enjoy going fishing but she no longer did so because she no longer had the will. Previously, she had been involved in Indigenous and contemporary art, and used to paint. However, she no longer painted because she did not have the will to do so. Her husband had become her carer, taking her to doctors, and doing the groceries, banking, and all the domestic duties.

29 The plaintiff said that on a few occasions La Trobe University had offered her work, but she had not felt she could do it. She did undertake a short stint of work in July 2019 which she coped with satisfactorily, but that role did not involve any organisational work. The plaintiff also had ongoing involvement with Nimmie- Caira, which is a property on her mother's traditional Country near Balranald in New South Wales. In November 2017, the plaintiff obtained a position with the Victorian Aboriginal Heritage Council ('VAHC') for a three-year term. That role involved the plaintiff attending meetings every second month in Melbourne. The meetings usually lasted for two to three days. The plaintiff felt that that role gave her a purpose and kept her going. However, when she returned home after attending a meeting, she felt exhausted. The plaintiff had also assisted her daughter in her small business making bush medicine, by picking bush medicines when they were in season.

30 The plaintiff stated that before the events of 2013 to 2014, she had worked full-time for the defendant for over 20 years as a foster care worker, a case manager and in family services. She no longer had the capacity to work full time because she could not control her emotions, and she said that she would become a 'mess' quite quickly.

31 The plaintiff was cross-examined at some length. For that purpose, counsel for the defendant had access to the plaintiff's medical records. She agreed that during the periods of 2001 to 2006, and 2009 to 2011, she had been prescribed antidepressant and anxiolytic medications. The plaintiff stated that those periods coincided with the times when she worked with the defendant. However, there was one occasion in the early 2000s when a good friend had been murdered, and the plaintiff had found her deceased body. Otherwise, she stated, the medication that had been prescribed for her was due to the work that she had undertaken with the defendant.

32 The plaintiff said that in 2007 or 2008 she was involved in an incident with Ms Whitton in which Ms Whitton threw a cup of tea at her face. Ms Whitton later apologised to her. The plaintiff said that an incident in 2009 (in respect to which the plaintiff was charged by police) occurred in which she had a 'mental breakdown' after putting up with Ms Whitton's constant swearing and attacks on her. On that occasion, she said, Ms Whitton walked out of an office in the building and abused and threatened her. The plaintiff picked up a small stepladder and smashed it against a wooden post on the building. In response, Ms Whitton attacked her physically. A number of female Elders from the building restrained them. The plaintiff said she assaulted Ms Whitton on that occasion in order to defend herself.

33 The plaintiff agreed that she had consulted Dr Omotoso in February 2013 for treatment for stress. She stated that she was working with the defendant at that time. She was also working as a chief executive officer of the Balranald Aboriginal Land Council then, but she was doing so only on a part-time basis.

34 The plaintiff was also cross-examined concerning an incident in 2011 in which she had a verbal altercation with Egan. On that occasion, she had sought to obtain a copy of the audited report of the defendant before she attended the annual general meeting of it. It was on that occasion that she removed the photographs of her Elders and family members. She said she did so because she had been shown disrespect. She denied that she had deliberately smashed the photographs. Rather, she had dropped them because she was so upset and felt like she was going to collapse.

35 The plaintiff was cross-examined at some length concerning the circumstances in which she was charged with cultivating marijuana at the premises at Bogajim Road, and concerning the circumstances in which she had attacked the vehicle at the premises of the defendant with a log splitter. She said that on that latter occasion, she had attended the premises of the defendant to try to obtain a supply of clean water. When she was told that she could not obtain clean water, she lost control of her temper, and struck the vehicle with the log splitter.

36 The plaintiff was also cross-examined about an incident in 2017, in respect of which she was charged with affray. On that occasion, her mother was abused by a young relative who had a violent background. The relative attended her place with a machete. The plaintiff picked up a shovel and stood in front of him. She said her mother and aunt and some other family members were present there.

37 The plaintiff stated that she was abused by Ms Whitton both at work and on the telephone. She said that she reported the telephone abuse to Egan and also to Steven Bowden ('Bowden'), who was employed at the defendant. Counsel put to the plaintiff answers that she had given to some interrogatories, which suggested that no such abuse had been directed to her on the telephone.

38 The plaintiff then said that in early 2014, Ms Whitton telephoned her and said that she was going to tell Lane that she (the plaintiff) was a drug dealer. Ms Whitton asked her for Lane's phone number. The plaintiff felt that she first had to obtain Lane's permission to give his telephone number. On 16 February, she received telephone calls from Lane and Egan. As a result, she wrote the letter of complaint dated 18 February to the defendant. She said that on the same day she had a doctor's appointment. Counsel put to the plaintiff that her medical practitioner's records show that she first attended on 25 February. The plaintiff responded that on 18 February she would have attended a healing group Pilates session, and on 21 February she attended a wellbeing support at Knights Bend for women's business repatriation.

39 The plaintiff was cross-examined about the course that she undertook in 2014 in certificate 4 of Aboriginal cultural heritage management. She agreed that she completed the course at the end of 2014. After she finished the course, she had looked for work in the area of Aboriginal culture and heritage. She found an appropriate job advertised in 2015, but did not apply for it.

40 The plaintiff said that she is now the Deputy Chair of the VAHC. That council administers the Aboriginal Heritage Act 2006. The plaintiff's position on the council is a ministerial appointment. She is sent a folder for each meeting which she attends every second month for three days. In her role, the plaintiff would make a telephone call when necessary to discuss the repatriation of ancestral remains. She had also negotiated for the return of such remains to Knights Bend with Aboriginal Affairs Victoria. The plaintiff also worked with the owners and organisers of Nimmie-Caira. She attended a meeting every six months in Balranald, New South Wales.

41 The plaintiff said that her work involved cultural knowledge and spirituality which had been taught to her by her parents. She agreed that she is known as an expert in Aboriginal cultural affairs and arts. She agreed that she worked in her daughter's business for five hours a week. For treatment she had gone 'bush' with her Elders who counselled her and they did bush medicine there.

42 Philip Egan was appointed the chief executive officer of the defendant in November 2010. He subsequently had held that position for two or three periods. He was chairman of the defendant from 2013 until 2014.

43 Egan gave evidence that Lane contacted him in February 2014 to tell him about a telephone call he had received from Ms Whitton, in which Ms Whitton alleged that the plaintiff was using and dealing in drugs. After Egan received an email from Lane on 19 February 2014, confirming the content of the conversation that Lane had had with him, he convened a meeting that was attended by Ms Whitton. Egan asked her about what she had said to Lane, and she said 'I'll effing prove it'. Ms Whitton also accused the plaintiff of 'sleeping around'. She accused the plaintiff of being a drug dealer and a prostitute.

44 Egan said that he had discussed with Ms Whitton her aggressive behaviour towards people. On one occasion, he had to send three senior executive non-Aboriginal staff home for their own protection from bullying and harassment by her. He said that he had no way of protecting the plaintiff from Ms Whitton's conduct at the defendant's premises. Egan said that he had known the plaintiff all his life. He had seen the plaintiff twice since she had ceased employment with the defendant. On those occasions she looked a 'shell' of her former self. The plaintiff used to be a 'vibrant, strong cultural woman in [the] community', but her energy had left her.

45 In cross-examination, Egan said that the REFHL project had been in place for three years, but that it was winding down at the time, because the defendant was unable to secure continuing funding for it. He disagreed that if a community member had been concerned about the plaintiff's work, it would have been appropriate to ring Lane. Egan said that in such a case the appropriate person to contact was the CEO. If a complaint had been made to the CEO, there would have been an investigation through a complaints board process.

46 Siselo Havea ('Siselo'), the husband of the plaintiff, stated that when the plaintiff secured her role with the defendant in 2013, she was very excited. However, in the following months, she became very difficult to live with because of the bullying she suffered from Ms Whitton. He said that there was a build-up of issues with the plaintiff. She experienced significant mood swings, where she could be either low or high in her mental state. When she was low she would be in bed for weeks, staying in her pyjamas and being unable to wash herself. Before the middle of 2013, the plaintiff could do all of the domestic tasks, but she had ceased to attend to them. The plaintiff's relationship with Siselo had suffered a lot. There was no longer an intimate aspect to their marriage, and since 2014 they had separated on a number of occasions. Siselo said that he feared for the plaintiff's safety, because she had engaged in self-harm and had thoughts of suicide. On one occasion, she cut her arm and was admitted to Ward 5 in the Mildura Hospital.

47 In cross-examination, Siselo said that the plaintiff did not take medication for sleep before 2013. The plaintiff was then happy and working full-time. The plaintiff did not smoke marijuana before late 2013, but she had been smoking it since then. Siselo denied that the plaintiff had been selling drugs from the premises of Bogajim Road and he denied that people regularly attended there to purchase marijuana from her.

48 Bowden had been employed by the defendant in a number of capacities, including as chief executive officer, on different times. He was also a member of the board of the defendant. He said that during that time, Ms Whitton had made complaints to the board that the plaintiff had been selling drugs from her house. Ms Whitton had said that the plaintiff was not fit to work for the defendant because she was a drug addict and a drug dealer. Bowden said that when the plaintiff returned to work in May 2014, the defendant tried to keep her safe, but Ms Whitton did not change or modify her behaviour.

49 Marie Murray, the mother of the plaintiff, gave evidence of the incident in July 2014 when she attended the premises of the defendant with the plaintiff. On that occasion, they passed Ms Whitton who was walking out of the premises. Ms Whitton turned to the plaintiff and Ms Murray and told them to 'go and fuck' themselves. Ms Whitton told the plaintiff that she would never get a job with the defendant again. Ms Murray said that that was the first occasion on which she had heard exchanges of language involving Ms Whitton and the plaintiff inside the defendant's building. However, she had heard Ms Whitton abuse the plaintiff a few times outside the building. One occasion was when the plaintiff and Ms Murray attended the home of Ms Murray's other daughter Rhonda, who lived opposite Ms Whitton's house. On that occasion, Ms Whitton abused the plaintiff and said she was the 'biggest slut going'. On another occasion, in December 2014, Ms Whitton approached members of her family outside Ms Murray's home, and called them 'sluts'.

50 Debra Stead was employed by the defendant as its finance operations manager between 2008 and 2016. After the plaintiff commenced work for the defendant as the REFHL coordinator in September 2013, Ms Stead became aware that Ms Whitton had concerns about the plaintiff having that role. She heard Ms Whitton saying to the chief executive officer that the plaintiff was 'a druggie' and a drug dealer. Ms Stead heard Ms Whitton use the same language, referring to the plaintiff, at meetings of the board of the defendant. Ms Whitton also said that she had organised a police raid on the plaintiff's home. After the plaintiff's complaint about Ms Whitton in February 2014, the defendant tried to take steps to ensure that she was safe in the workplace, but it was difficult to do so because of the physical design of the defendant's premises. Her position as coordinator was made redundant in August 2014 because the funding for it ceased.

51 Kay Dowdy is an aunt of the plaintiff. An affidavit affirmed by her was tendered in evidence and relied on by the plaintiff. Ms Dowdy is an Aboriginal Elder. In her affidavit she explained the important role of an Elder in passing on the cultural and spiritual values of her peoples to future generations. Ms Dowdy stated that before the plaintiff began to experience problems at work, she had been heavily involved in community projects to help support and educate Aboriginal youth. She was energetic, confident and well spoken. Ms Dowdy considered that she could develop into a leader of her people. Ms Dowdy became aware that the plaintiff had problems with another staff member, Ms Whitton, while working with the defendant. The plaintiff told her that she was upset and stressed about what happened at work and she feared she would lose her job. Ms Dowdy noticed that the plaintiff withdrew from community projects and did not spend as much time with her people. Ms Dowdy attempted to assist the plaintiff deal with her problems by spending time with her on their land and trying to help heal her by spiritually reconnecting the plaintiff with her land and traditions. Ms Dowdy spent time telling the plaintiff about her past experiences and the stories of their ancestors, to reconnect the plaintiff with her spirituality so that she could draw strength from it. Ms Dowdy considered that that assisted the plaintiff to feel better, but she remained withdrawn, looked sad and became less communicative.

52 Dr Gregor Schutz, a psychiatrist, examined the plaintiff on four occasions for the purposes of the litigation. The first occasion was in June 2016. On that occasion, the plaintiff outlined to Dr Schutz in some detail the circumstances in which she said she had been bullied by Ms Whitton. The plaintiff described her psychological symptoms, including suicidal thoughts, low energy, loss of care for her appearance, irritability, loss of concentration, disturbed sleep, low sex drive, an inability to cope with stress, and serious symptoms of anxiety including nightmares, flashbacks and avoidance. The plaintiff denied that she had had any other issues in her life. She told Dr Schutz that the treatment she had received was primarily cultural, which involved getting the support and advice of Elders, and visiting ancestral sites. The plaintiff had told Dr Schutz she had been on an antidepressant medication (Desvenlafaxine) and that she also occasionally took Valium. The plaintiff stated that there had been no improvement in her condition in recent times, and that her symptoms had deteriorated in the last three months.

53 After conducting a mental state examination, Dr Schutz concluded that the plaintiff had a condition of severe adjustment disorder with anxious and depressed mood and features of traumatisation. Those features included nightmares, flashbacks, feeling on edge and being easily startled. Dr Schutz considered that the plaintiff's illness had occurred in 2005 and 2011 due to workplace bullying, that it had gone into remission when she was away from the workplace for the following three years, and then it recurred in a more severe form in 2014. Dr Schutz also considered that as an alternative diagnosis, the plaintiff had a major depressive disorder, the principal features of which were lowered mood, loss of interest, loss of enjoyment and energy and suicidal thoughts. He considered that the plaintiff was a genuine historian and that her conditions were caused by the issues which she had suffered within her workplace. He considered, in June 2016, that there were significant barriers to the plaintiff returning to work. However, she might have a capacity to return to work for ten to fifteen hours per week in a specific culturally appropriate role. She would, however, require occupational rehabilitation to assist her confidence to undertake such a role.

54 Dr Schutz next saw the plaintiff in Mildura on 19 June 2018. At that time she had ceased taking medication (Quetiapine) because it caused her to feel too sedated during the daytime. She was then on no medication apart from two diazepam tablets each day. She said that her treatment predominantly consisted of being engaged through her community Elders which gave her a connection to her Country and its waters. She had been taken to the bush and participated in activities including a traditional smoking and cleansing ceremony. The plaintiff did not find western counselling to be helpful to her. The plaintiff said that she had become more active, having been appointed to the VAHC for a three-year term, as well as being involved in Nimmie-Caira. The plaintiff told Dr Schutz she still suffered mood fluctuations with ongoing anxiety symptoms and avoidance, nightmares and flashbacks. Dr Schutz considered that the plaintiff continued to have a differential major depressive disorder. Her condition had improved mildly since 2016, but she had ongoing impairment in her functioning. Dr Schutz remained of the opinion that the plaintiff's injuries were caused by her employment. She had been out of paid employment for more than four years. Although she was coping with some voluntary work, that was not translatable into any meaningful work capacity.

55 Dr Schutz next assessed the plaintiff in November 2018. The plaintiff told Dr Schutz that she felt better since she had been on the VAHC and she found her role as deputy chair to be healing for her. She also enjoyed helping her daughter in her small business. The plaintiff had commenced on another antidepressant medication and on medication for anxiety with no side effects. She was continuing to receive ongoing traditional therapy through her Elders. She suffered mood swings, had little energy, appetite or sex drive. She had difficulty coping with stress, found it hard to make decisions, had reduced suicidal thoughts, and continued to suffer panic attacks, occasional nightmares and flashbacks. Dr Schutz concluded that there had been some improvement in the plaintiff's psychological state. However, it had plateaued and he was doubtful there would be any substantial further improvement. He considered her condition would remain on the same course. He thought it likely that the plaintiff's treatment with Aboriginal Elders had assisted her. However, the plaintiff continued to lack any meaningful capacity for work and study.

56 In cross-examination, Dr Schutz stated that his diagnosis relied significantly on the accuracy of the information provided by the plaintiff, particularly in respect of her previous history. Dr Schutz was then taken through the plaintiff's medical records, which contained a number of notations as to treatment and consultations she had received in relation to her psychological state before the events in this case.

57 Dr Schutz had noted that the defendant's health service records stated that the plaintiff had been prescribed antidepressant medication (Citalopram) in 2003. Dr Schutz did not ask the plaintiff about that prescription. Further, Dr Schutz had not been aware of any of the following matters: in May 2001 and October 2002, the plaintiff had been prescribed Temazepam; in October 2002, she had been provided with a psychological referral; in November 2002, she had been prescribed Avanza (antidepressant medication) and Temazepam; in November 2003 and December 2003, she was prescribed Valium; and in July 2004, August 2004 and January 2005, she was prescribed Temazepam. Dr Schutz stated that each of those matters would have been relevant in relation to his diagnosis. He acknowledged that on the history that the plaintiff gave to him, when she ceased working at the defendant's corporation between 2011 and 2014, her condition went into remission. Dr Schutz agreed that a notation in the plaintiff's records on 21 February 2013 - that the plaintiff was completely stressed out and was prescribed Relpax - would have been relevant to his consideration. Dr Schutz stated he was not told by the plaintiff that her friend was murdered in the early 2000s and that she was first on the scene. Dr Schutz considered that that matter would have been of real significance to his diagnosis.

58 Dr Schutz agreed that he was not told by the plaintiff that she was charged with, and pleaded guilty to, an assault on Ms Whitton in January 2009. Nor did she tell Dr Schutz of the incident in 2011, in which she damaged a vehicle of the defendant's officers, and was charged with wilful damage. He agreed that if he had known about those matters, they might have been relevant to his assessment of the stressors that were affecting her at the time, and also to his assessment of her general reliability as a historian.

59 Dr Schutz agreed that the ability of the plaintiff to complete her studies in the certificate 4 at the end of 2014 was relevant in relation to an assessment of her symptoms and her capacity to return to work.

60 Dr Schutz agreed that when he examined the plaintiff in mid-2018, she reported an improvement of 20 per cent, and was involved in the VAHC. He formed the view that that type of role would be most likely to lead to some form of return to work, but he said that she might have reached the limits of her capacity.

61 In response to the plaintiff's case, the defendant called five witnesses (including Ms Whitton), together with Dr George Mendelson, a psychiatrist, who examined the plaintiff on one occasion in August 2018.

62 Ms Whitton gave evidence that, having been raised in New South Wales, she and her husband and family settled in Robinvale in 1977. She had a longstanding connection with the defendant, and she had been a director of it for some time. She regarded herself as an Elder of the Aboriginal community. Ms Whitton said that she had had a particular concern about the proliferation of drugs, and in particular methylamphetamine, in Robinvale and she had been involved with others in attempting to address that problem. She said that as a matter of habit she tended to swear quite a lot, but she did not regard herself as communicating a violent manner.

63 Ms Whitton described some previous incidents involving herself and the plaintiff. In 2007, she threw liquid from a cup into the plaintiff's face in the course of an oral argument between them. Later, she said, they reconciled about it. In 2009, there was an incident in which the plaintiff assaulted Ms Whitton at the premises of the defendant. Ms Whitton stated that on that occasion the plaintiff had entered the premises angrily, and was swearing volubly. In an ensuing confrontation, the plaintiff threatened Ms Whitton with a chair. When Ms Whitton walked away, the plaintiff forcefully pushed her to the ground and punched her. Following that incident, Ms Whitton did not speak to the plaintiff again.

64 Ms Whitton stated that when the plaintiff became coordinator of REFHL, she herself was initially glad that the plaintiff got that job because she had the relevant cultural knowledge. However, subsequently, Ms Whitton received information that the plaintiff was using drugs. She contacted Lane at the Royal Children's Hospital and told him that the plaintiff should not be working on the REFHL program because she was using and selling drugs. She also telephoned Mara Richards, the chief executive officer of the Robinvale District Health Service, and conveyed the same point to her. Ms Whitton stated that subsequently, when she was at the Robinvale Court on 25 February 2014, she had a conversation with Senior Constable Stubbs. Ms Whitton's grandson Roderick was there, and Ms Whitton showed the Senior Constable Stubbs some photographs that Roderick had captured on his telephone. It was alleged that those photographs depicted some cannabis plants being grown at the plaintiff's premises at Bogajim Road.

65 Ms Whitton stated that after the plaintiff started working as a coordinator of the REFHL with the defendant, she never made any telephone calls to the plaintiff threatening that she was going to get her out of the job and that she should not be there. Ms Whitton also denied that she ever spoke to the plaintiff at the office and made threats to do that to her. She denied that there was an occasion on about 1 July 2014 at the premises of the defendant when she told the plaintiff and her mother to 'fuck off' or 'go fuck yourselves'. Specifically, Ms Whitton stated that she had never spoken to the plaintiff since the plaintiff assaulted her back in 2009.

66 In cross-examination, Ms Whitton denied that she had spoken to the plaintiff since the occasion in 2009 when the plaintiff pushed her onto the floor and assaulted her. She again denied that she had followed the plaintiff into her office and told her that she was going to lose her job. She also denied that she said to Egan that the plaintiff was a drug dealer, a drug user and a prostitute. She denied that she made similar remarks to Ms Stead or Bowden about the plaintiff. She said that she made the telephone call to Lane as a member of the community and as a concerned grandmother and community Elder.

67 Mara Richards, the chief executive officer of the Robinvale District Health Service, stated that that service was an auspicer of funds directed to the REFHL program in Robinvale. She said on one occasion Ms Whitton telephoned her and asked her if she knew that the plaintiff was growing marijuana plants. Ms Whitton expressed concern about drug use within the community and children being at risk.

68 Frederick Baxter was the chair of the defendant until November 2013. He remained a director on the board of the defendant until March 2014. He gave evidence that in 2014 he did not become aware of any telephone calls made by Ms Whitton to Lane. He said that he had never heard Ms Whitton referring to the plaintiff in opprobrious terms or make any threat about any members of the staff of the defendant.

69 Roderick Whitton, the grandson of Ms Whitton, stated that he regularly visited the plaintiff's premises at Bogajim Road in order to visit his cousin there. He stated that, at his mother's request, he took photographs on his telephone of plants that were situated in the backyard.

70 Sergeant Paul Stubbs, who at the time was stationed at Robinvale police station, executed a warrant to search the Bogajim Road premises on 7 March 2014. As a result, plant material was seized and two charges were laid against both the plaintiff and Siselo. Sergeant Stubbs gave evidence that on 25 February 2014, while he was at the Robinvale Magistrates' Court, he had been approached by Ms Whitton who told him that cannabis plants were being grown at the premises. Ms Whitton provided Sergeant Stubbs with an image of the plants on the mobile telephone of her son Roderick. When he executed the search warrant on 7 March, he located a dried out plant placed by the refuge bins in the driveway, and two further plants in the rear garden. When he interviewed the plaintiff, she said that she did not understand how the plants were there, and both she and Siselo denied knowledge of the plants at the premises.

71 Associate Professor George Mendelson, psychiatrist, examined the plaintiff on 29 August 2018. When he asked the plaintiff about any previous psychological or emotional issues, the plaintiff did not acknowledge having any such problems or treatment in the past. She said that her problems commenced as a result of being bullied and harassed at work by Ms Whitton. After she ceased work in February 2014, she had been in bed for three years.

72 When asked about her present symptoms, the plaintiff said that she continued to experience anxiety, was moody and angry, had difficulties with concentration and sleeping, and that she suffered irritability and had lost weight.

73 Associate Professor Mendelson had access to the plaintiff's clinical records with the defendant's health clinic commencing March 2001. He described in detail the contents of those records, a substantial part of which had been put by counsel to the plaintiff and to Dr Schutz in cross-examination.

74 Associate Professor Mendelson stated that based on that information, the plaintiff had a history of being prescribed medications for an anxiety disorder, that preceded her most recent employment with the defendant. He considered that the history that the plaintiff had given him was not accurate, in that the plaintiff had claimed that she had not experienced any previous emotional or psychological problems, and that she had not received any treatment for such difficulties, before the episode of the bullying of which she complained.

75 Based on the history and information available to him, Associate Professor Mendelson considered that the plaintiff had a chronic anxiety disorder, which had been manifest for many years before her most recent employment with the defendant. That disorder was manifested predominantly by insomnia and sleep disturbance and intermittent experience of depressive symptoms. The plaintiff's pre-existing condition may have been exacerbated during January 2014 as a result of the ongoing conflict between herself and Ms Whitton. However, any such exacerbation would have resolved within three to six months after the plaintiff left her position with the defendant. Associate Professor Mendelson explained that when people experience a stressful event that results in anxiety or exacerbation of pre-existing anxiety, the symptoms will tend to diminish over a period of time once the stressor is removed, and will resolve within three to six months. He considered that the plaintiff had a capacity for gainful employment in any position consistent with her qualifications and work experience, such as a teacher at a TAFE college. However, he considered that it would be inadvisable for her to attempt to return to work with the defendant.

76 In respect of the plaintiff's prognosis, Associate Professor Mendelson considered that in view of the plaintiff's long history of anxiety symptoms dating back to 2001, it was likely that in the future she would continue to experience fluctuating episodes of anxiety and depression, and that her condition was chronic, and would not likely abate fully in the future. He did not consider that those future episodes would be due to her employment with the defendant.

77 In cross-examination, Associate Professor Mendelson said that the plaintiff did not tell him that she suffered from panic attacks, flashbacks or nightmares. If he had received that information, it was possible that he might consider that she had ongoing consequences from her employment. He did not anticipate any acknowledgement by the plaintiff of any improvement in her condition until the litigation was finished. When Associate Professor Mendelson examined the plaintiff, she was aggrieved and resentful, which affected her emotional state while the litigation was in progress. Associate Professor Mendelson disagreed with the view of Dr Schutz, and he considered that she had the motivation and capacity to commence employment, although not on a full-time basis at the outset. He disagreed with Dr Schutz's diagnosis that the plaintiff has an adjustment disorder.

Ground 1: failure of trial judge to discharge jury

78 As we have mentioned, ground 1 concerns remarks made by senior counsel for the defendant in the course of his opening address to the jury.

79 In the course of that address, counsel told the jury that Ms Whitton would deny perpetrating the abuse complained of by the plaintiff. He said that the allegations made by the plaintiff would be the subject of a 'blanket denial' from Ms Whitton. Counsel then said to the jury:

What she will say is that she learnt of the allegations of drug use and dealing from Barbara Egan, who is another Elder in the community who gave her John Lane's number. So, she got John Lane's number from Barbara who made these allegations and she rang John Lane. She told him that [the plaintiff] was a drug user and seller and shouldn't be working with kids.[3]

80 Counsel also said to the jury that Ms Whitton would admit telephoning Mara Richards and telling her substantially the same things that she had told Lane.

81 After the conclusion of counsel's opening, senior counsel for the plaintiff, in the absence of the jury, raised with the judge his concern that the jury had been told that Ms Whitton would say in her evidence that she learnt of the allegations against the plaintiff from Barbara Egan. Counsel contended that it was inappropriate for the defendant's counsel to foreshadow hearsay evidence which was inadmissible. Counsel noted that the allegation had not been put in cross-examination to the plaintiff, who might have been able, if she had the opportunity, to have rebutted the suggestion that Barbara Egan would have any knowledge of the matters that she had apparently related to Ms Whitton.

82 In the course of further discussion, the trial judge expressed concern to counsel for the defendant about the prejudicial effect of the statement that he had made to the jury. Her Honour suggested that she might not be able to 'fix' the prejudice, that had been occasioned to the plaintiff, by any direction, and that she was concerned that the matter could not be rectified. The judge then adjourned for the luncheon break, stating that she would have a 'think about it', and stating 'it's not staying with them [the jury] the way it is'.

83 When the hearing recommenced, the judge told senior counsel for the defendant that she had 'significant concerns' about the matter, because it had never been contemplated that Barbara Egan would be called as a witness. We interpolate that at that time Barbara Egan was in a nursing home suffering from dementia. The judge continued by stating that the matter was 'highly prejudicial to the plaintiff's case'. She did not consider the matter could be remedied by any direction by her and that she was considering discharging the jury and hearing the matter as a cause. Her Honour noted that the allegation of drug dealing was central to the case, and the only witness who could support it was Ms Whitton.

84 Discussion then took place between the judge and senior counsel for the plaintiff as to whether the foreshadowed evidence by Ms Whitton (that she heard from Barbara Egan that the plaintiff was a drug dealer) was hearsay. The discussion concluded with senior counsel for the plaintiff formally applying for a discharge of the jury. Her Honour said that she needed to consider the matter over night.

85 In the meantime, counsel for the defendant was permitted to commence calling witnesses. Before he did so, and after the jury re-entered the court, counsel said to the jury that there was 'one more matter by way of opening' that he wished to say. He then said to the jury:

... in opening this morning I gave you a description of what Jenny will say about a conversation she had with Barbara Egan, which led to the phone call to John Lane and I said to you that there was the allegations of drug dealing came to her from Barbara Egan. It's absolutely critical that you understand that that's not evidence that what Barbara Egan said is correct from Barbara Egan. Barbara Egan's not going to be called in the case. So, it's just explaining why the phone call was made to John Lane in the first place to meet the potential thrust of an allegation that had just come out of nowhere and she had a vendetta of some sort. That's the only reason I put that to you. It's the only way you can use that evidence as a matter of law.[4]

86 On the following morning, the judge delivered her ruling. Having recited the circumstances in which the issue arose, and the competing submissions made by the parties, the judge concluded:

Upon ... reflection, I considered the subsequent comments made by senior counsel for the defendant dealt with the issue appropriately and directed that he take particular care to control Ms Whitton's evidence re Barbara Egan to simply she made the call to John Lane in response to Barbara Egan's comments - which is not hearsay evidence. I also advise the parties that I would direct the jury again as to the limited nature of any evidence of Barbara Egan when that issue arose.[5]

87 In support of ground 1, counsel for the plaintiff submitted that the judge erred in failing to discharge the jury on the application of senior counsel for the plaintiff at the trial. It was submitted that that failure by the judge, to discharge the jury, resulted in a miscarriage of justice.

88 Counsel noted that when the plaintiff gave evidence, it was not put to her, in cross-examination, that Ms Whitton had learnt of the allegations against her from Barbara Egan. Thus, it was contended, the plaintiff was not given the opportunity to address the question whether Barbara Egan could, or would, have had firsthand knowledge of the matters that were the subject of those allegations. Counsel also noted that senior counsel for the defendant, at trial, had cross-examined Barbara Egan's son, Phil Egan, as to the important nature and status of an Elder in the Aboriginal community. In that way, it was submitted, counsel for the defendant was able to invest Barbara Egan with particular authority and respect as the source of the hearsay information that she provided to Ms Whitton. Counsel noted that, apart from the reference by the defendant's counsel to Barbara Egan, the only witnesses who gave evidence that the plaintiff had been engaged in drug trafficking were Ms Whitton and her grandson, Roderick, and their credit, on that issue, and generally, was under particular attack in cross-examination. Thus, it was submitted, the reference by counsel for the defendant to Barbara Egan impermissibly invested the evidence of those witness with a degree of credibility.

89 Accordingly, it was submitted that in circumstances in which senior counsel for the defendant was aware that he was unable to call Barbara Egan, his statement to the jury that Barbara Egan was the source of the allegations made by Ms Whitton had the effect of disclosing highly prejudicial material to the jury. It was submitted that the statements made by senior counsel for the defendant were planned and part of a deliberate course of conduct, as opposed to a 'mere slip'. Counsel further submitted that it was unnecessary for senior counsel for the defendant to have made any reference to Barbara Egan as the source of the allegations made by Ms Whitton. The issue was whether Ms Whitton held the particular belief that she communicated to Lane, not whether there was a factual basis to it. Further, and in any event, by her own evidence, Ms Whitton claimed to have firsthand knowledge herself of previous drug trafficking by the plaintiff. Counsel noted that the judge's initial reaction was that the statement so made by defence counsel to the jury was highly prejudicial to the plaintiff's case. Further, the judge gave no directions to the jury on the issue, either at the time her Honour gave the ruling or later in her charge. In those circumstances, it was submitted that the judge erred in failing to discharge the jury on the application by senior counsel for the plaintiff.

90 In response, senior counsel for the defendant (who, it must be noted, did not appear for the defendant in the trial) submitted that the consequences of discharging a jury towards the end of a lengthy trial are so serious that it should only occur where irremediable prejudice has been occasioned to a party. The judge was best placed to determine the application, in particular by gauging the atmosphere of the trial. Further, it was contended that the impugned statement by senior counsel for the defendant did not amount to the introduction of a false issue or a gratuitous irrelevancy. Rather, it was relevant to rebut the assertion by the plaintiff that Ms Whitton had made up the allegations that the plaintiff was involved in drugs as part of a vendetta against the plaintiff.

91 Further, counsel noted that in the trial the plaintiff had tendered in evidence a copy of the email by Lane to Egan setting out the content of the telephone call that Lane had with Ms Whitton. In the email, Lane stated that Ms Whitton had said to him that her opinion of the plaintiff 'was shared by many people in the local Aboriginal community including many local Elders.' Subsequently, Ms Whitton was cross-examined by counsel for the plaintiff to confirm that she had said words to that effect to Lane. Thus, it was submitted, counsel for the plaintiff, at the trial, had himself introduced the evidence that Ms Whitton's belief was shared by respected and important members of the local Aboriginal community. Counsel for the respondent further submitted that the subsequent explanation by senior counsel for the defendant to the jury, as to the use which might be made in relation to the statement, was sufficient to allay any prejudice that might have been occasioned to the plaintiff. Subsequently, when counsel led evidence from Ms Whitton, he took careful steps to ensure that the impugned statement was not the subject of evidence by her.

92 Counsel for the defendant further noted that at the conclusion of final addresses, senior counsel for the plaintiff initially sought a direction from the judge to the jury that it must disregard the impugned statement made by counsel for the defendant in his opening. The judge expressed the view that it would be better if the matter was not revisited, so that the jury would not be reminded of it. On the following day, counsel for the plaintiff stated that he had changed his mind, and that he elected 'not to have a specific direction on that issue'.

93 Ordinarily, where in a civil trial inadmissible or inappropriate material is put before the jury - whether by way of evidence or address by counsel - the trial judge has the power to discharge the jury without verdict if the judge concludes that, in the circumstances, that material might improperly influence the jury in its deliberations in a way which could not be properly dispelled by an appropriate direction by the trial judge.[6]

94 In Croll v McRae,[7] Street CJ stated the relevant principle in the following terms:

... the right of every litigant to have his case fairly tried, free from bias and prejudice, and free from the intrusion of any extraneous matters calculated to influence the jury improperly in arriving at a determination. There may be cases where the impropriety complained of is of such a character, and the effect of it upon the minds of the jury is so speculative, that the Court cannot say that there is any reason to suppose that it improperly influenced them, but wherever ... there is reason to believe that the course of justice has been substantially affected, then in my opinion the Court has power - a discretionary power no doubt - to set aside a trial already had and to order a fresh inquiry.[8]

95 In determining whether the impugned material is such as to warrant a discharge of the jury, no doubt the judge must take into account a host of factors, including the context in which the material is introduced to the jury, the issues that are at large in the trial, and the atmosphere of the trial. In addition, it is appropriate for a judge to take into account the stage of the trial at which the impugned material is put before the jury.[9] Where the trial is well advanced, those considerations may well work in opposite directions. It is no small matter for a judge to discharge a jury, after it has been hearing a case for a number of days. On the other hand, where the impugned remark or material is placed before the jury at a late stage in the trial, it may well make a greater impression on the mind of the jury, which lingers until verdict, than if the material had been introduced at an earlier stage.

96 Where, on appeal, the question is whether the judge erred in failing to discharge a jury, it is particularly important for the appellate court to bear in mind the significant advantages of the trial judge in determining whether the impugned material or statement was such as to create a real risk that a party to the proceeding might be deprived of a fair trial. In G & J Shopfitters & Refrigeration Pty Ltd (in liq) v Lombard Insurance Co (Aust) Ltd,[10] Kirby P described the advantages of the trial judge in the following terms:

He or she is in control of the trial; has the duty to ensure that it is fairly conducted; and is more likely to appreciate the significance of the misconduct or the irregularity alleged than an appellate court. The trial judge has the great advantage of evaluating what has occurred in its full context, in this case, a trial which had already been delayed and which was in its eleventh day.[11]

97 Ultimately, the critical test for the appellate court is whether, in the circumstances of the case, and bearing in mind the signal advantages of the trial judge, nevertheless it is demonstrated that the failure of the trial judge to discharge the jury has resulted in a substantial miscarriage of justice to one or more of the parties in the proceeding.[12]

98 In applying those principles, it must be acknowledged that it was inappropriate for senior counsel, who then appeared for the defendant at the trial, to have told the jury, in his opening address, that Barbara Egan had informed Ms Whitton that the plaintiff had been trafficking in drugs. Barbara Egan was not available to give evidence in the trial. It was not necessary for defence counsel to have referred to her as the source of Ms Whitton's belief. As senior counsel for the plaintiff pointed out on this application, ultimately Ms Whitton was able to give sufficient evidence, on the point in question, without referring to Barbara Egan as the source of the information that she gave to Lane and Mara Richards.

99 Further, there was some basis for the concern expressed by counsel for the plaintiff, to the trial judge, as to the reference by defence counsel to Barbara Egan as the source of the plaintiff's information on that matter. Evidence had been put before the jury, both in cross-examination of Egan, and in the form of the affidavit of Kay Dowdy, as to the importance and status of a person who is regarded as an Elder in an Aboriginal community. The concerns immediately expressed by counsel for the plaintiff were, at the time, very much shared by the trial judge. It is clear that her Honour, by her initial response, was particularly concerned as to whether the impugned statement by defence counsel might have prejudiced the right of the plaintiff to a fair trial of the claims made by her in the proceeding.

100 Nevertheless, as the authorities to which we have referred make clear, ultimately the trial judge was in the best position to assess whether the impugned statement, made by defence counsel to the jury, would have that effect on the deliberations of the jury. It is clear, from the ruling made by the judge, that her Honour considered that the sting of the impugned statement was, at least to a material extent, reduced by the further explanation which defence counsel made to the jury concerning the limited use which it was permitted to make of his reference to Barbara Egan.

101 Further, it was relevant for the judge to take into account the particular context in which defence counsel made the statement to the jury. The trial commenced, with the plaintiff's counsel opening to the jury, on 28 August 2019. The plaintiff's case closed on 10 September, on the ninth day of the trial. It was on that day that the defence counsel made his opening address to the jury, in the course of which he made the impugned statement which is the subject of ground 1. In such a case, it would not have been appropriate to discharge the jury unless there was a sufficient basis upon which to apprehend that irreparable prejudice that had been occasioned to the plaintiff which might deprive her of a fair trial.

102 At that point in the trial, the jury had heard a significant amount of evidence, which involved a substantial number of factual issues. Following defence counsel's opening, the jury heard seven witnesses, lengthy final addresses by counsel for each party, and the judge's charge, over a further seven court sitting days. The jury ultimately retired to consider its verdict on 19 September, nine calendar days after the impugned remark was made to it. By that point, the jury had heard a total of fourteen witnesses, whose evidence spanned some 800 pages of transcript, and had received 38 exhibits tendered in evidence. During the balance of the trial, no further reference was made to Barbara Egan.

103 In her charge to the jury, the judge gave the usual direction that the jury must decide the case on the evidence, and that it was the answer given by a witness to a question, and not the question asked by the barrister, that constitutes the evidence.

104 Taking those matters into account, we are not persuaded that the impugned statement made by defence counsel to the jury in his opening address was such as to have resulted in a miscarriage of justice in the trial. It is regrettable that senior counsel referred to Barbara Egan as the source of Ms Whitton's belief that the plaintiff had been engaging in drug trafficking. Nevertheless, given the context in which the statement was made, the clarification of it by defence counsel in his further opening to the jury, and the stage in the trial at which the statement was made to the jury, we do not consider that the impugned statement would have had the capacity to have improperly influenced the jury in its deliberations. We are not persuaded that the decision of the judge, not to discharge the jury, was erroneous, or that it resulted in any miscarriage of justice to the plaintiff.

105 Accordingly, ground 1 of the application must fail.

106 Under ground 2, it has been contended on behalf of the plaintiff that the verdicts of the jury, on the claim for pain and suffering damages and on the claim for economic loss damages, were manifestly inadequate, being contrary to the evidence and the weight of the evidence.

107 In support of that ground, senior counsel for the plaintiff submitted that the jury could not have reasonably accepted the diagnosis by Associate Professor Mendelson that the plaintiff had a pre-existing chronic anxiety disorder, which was exacerbated by the bullying, and which had resolved within three to six months of the cessation of her employment with the defendant. Counsel noted that Associate Professor Mendelson had taken a history from the plaintiff that she had essentially normal function as a worker, parent and community member before she was subjected to bullying by Ms Whitton between September 2013 and February 2014. In addition, Associate Professor Mendelson took a history from the plaintiff that she had continuing serious psychological consequences as a result of that bullying. In those circumstances, it was submitted, it was not appropriate for Associate Professor Mendelson to have reached a view, contrary to that history, based on a series of entries in clinical notes which Associate Professor Mendelson had not read at the time at which he examined the plaintiff, and which Associate Professor Mendelson did not have the opportunity to discuss with the plaintiff and seek an explanation from her. Further, the plaintiff had been cross-examined by counsel for the defendant in relation to some of those entries in the clinical notes. None of the answers, given by the plaintiff in cross-examination, were provided to Associate Professor Mendelson.

108 In addition, counsel submitted, Associate Professor Mendelson formulated his view on the erroneous basis that the plaintiff had returned to work with the defendant in May 2014 and had remained in that employment till August 2014 when her position was terminated. In fact, the plaintiff's evidence was that when she returned to work in May 2014, she was frightened and uncomfortable, and she only remained there for a short period of time. Counsel further noted that Egan gave evidence that he had known the plaintiff for the whole of his life, that she had been a vibrant and strong cultural woman in the Aboriginal community, but that she had lost all of her energy for life since the events in question. Egan's evidence was not challenged in cross-examination on the basis of the matters stated by Associate Professor Mendelson in his evidence. Similarly, it was submitted, the contents of the clinical notes were not put to the plaintiff's mother Marie Murray in cross-examination, and she was not given the opportunity to comment on the proposition that, before the plaintiff commenced work with the defendant in late 2013, she had experienced psychological issues.

109 In response, senior counsel for the defendant noted that the claims made by the plaintiff, in her evidence, of bullying and harassment by Ms Whitton rested on a range of allegations of fact which were wholly contested, by cross-examination, and which were contradicted by Ms Whitton in her evidence. The range of allegations made by the plaintiff were summarised in a 'template' document that was provided to the jury. The affirmative answer given by the jury to the first question - whether between 25 September 2013 and 7 March 2014 there had been any bullying or harassment of her by Ms Whitton - did not disclose the basis upon which the jury had reached that verdict. In particular, counsel submitted, the jury's affirmative answer to that question might have been based on a limited number of the factual allegations made by the plaintiff.

110 Counsel further submitted that it was a matter for the jury whether it accepted the evidence of Associate Professor Mendelson. The fact that Associate Professor Mendelson did not put to the plaintiff the content of the clinical notes, which he later read, did not invalidate his opinion, nor did it require the jury to disregard it or discount the weight that it should give to it. On the other hand, counsel noted, when Dr Schutz was taken through the content of those notes in cross-examination, he considered that they were, in significant measure, inconsistent with the facts that had been related to him by the plaintiff, and, to that extent, they qualified the opinion given by him as to the plaintiff's condition and prognosis.

111 Counsel for the defendant submitted that the jury was entitled, on the basis of the clinical notes, and on the basis of the evidence given by Dr Schutz in cross-examination, to conclude that the plaintiff did have significant pre-existing emotional and psychological issues, that predated the bullying that she alleged she had been subjected to by Ms Whitton while she was employed by the defendant. In that connection, counsel also referred to the evidence of the plaintiff's previous drug use, and the evidence of the incidents which resulted in charges of assault and wilful damage against her.

112 Counsel for the defendant also drew attention to the significant lack of medical treatment received by the plaintiff since she had ceased her employment with the defendant. On the other hand, during the same period, the plaintiff had completed her studies in certificate 4 in Aboriginal cultural heritage management in 2014, and she had been engaged in other activities, including a brief stint of employment with La Trobe University, and her position with the VAHC.

113 Finally, counsel for the defendant noted that the plaintiff had put little evidence before the jury to support her claim for economic loss. She did not tender any previous tax returns as evidence of her pre-existing earnings. The plaintiff did not adduce any evidence as to other employment which she might have been able to engage in, but was precluded from doing so by reason of her psychological injuries. Nor did the plaintiff provide any evidence of the remuneration which she might have been able to earn if she had been involved in such employment. Counsel noted that the amount of damages awarded by the jury for economic loss amounted to approximately 12 months' remuneration based on the salary that the plaintiff was earning in her role with the defendant. It was submitted that it was open to the jury to assess damages in that amount, in light of the sparse nature of the evidence adduced on behalf of the plaintiff's claim for economic loss.

114 Ground 2 is based on the proposition that the particular verdicts of the jury were not reasonably open on the evidence. In order to succeed on such a ground, the plaintiff must demonstrate that the jury, acting reasonably, could not have arrived at the conclusions that it did in relation to each of the heads of damages claimed by the plaintiff.

115 That principle was stated by the High Court in Calin v The Greater Union Organisation Pty Ltd[13] in the following terms:

The correct principle is that a court of appeal may order a new trial if the jury has reached a conclusion which is against the evidence in the sense that the evidence in its totality preponderates so strongly against the conclusion favoured by the jury that it can be said that the verdict is such as reasonable jurors could not reach.[14]

116 In John Fairfax Publications Pty Ltd v Rivkin,[15] McHugh J expressed the applicable principles in similar terms:

In determining whether a civil jury acted reasonably in reaching its verdict, an appellate court must approach the case on the basis most favourable to the respondent in the appeal. The question for the appellate court is not whether the verdict is right or appears to be right but whether in the light of the evidence the verdict shows that the jury failed to perform its duty. As long as the verdict cannot be described as irrational, it must stand.[16]

117 In determining that question, the appeal court is required to assume that the jury took the view of the evidence that was most favourable to the verdict.[17] Accordingly, the task for an appellant to succeed, on such a ground, is a formidable one, particularly where (as in this case) the appellant is the party who bore the burden of proof on the issues raised on appeal.[18]

118 In a case in which the jury verdict necessarily involved elements of assessment or evaluation by the jury, such as in a challenge to an award of general damages, the task confronting an appellant is particularly difficult.[19] In Moran v McMahon,[20] Kirby P said in respect of an appeal relating to an assessment of general damages:

Because of the large element of evaluation and the necessary latitude for human reaction to the assessment of money damages for the imponderables compensated by an award of general damages, appeal courts should acknowledge the very large scope that must be left by the law to the trial judge. As in other discretionary decisions, appeal courts should be extremely cautious before interfering and this, precisely because of a recognition of the inevitably unscientific nature of the task committed to the trial judge.[21]

119 In applying the above principles, it is important, in a case such as this, to keep in mind the significant advantages enjoyed by the jury in assessing the evidence, and in determining the reliability and credibility of witnesses, which are not available to this Court on appeal. In that respect, the following passage from the judgment of Kaye JA (with whom Warren CJ and Ferguson JA agreed) in Savino v Schieven[22] is relevant:

In applying those principles, it is important to bear in mind the advantages enjoyed by the jury which are not available to the court on appeal. The jury had the opportunity to assess the reliability and credibility of the witnesses called before it. It was better placed to understand some parts of the evidence, and, in particular, explanations given by witnesses by reference to photographs and sketch plans tendered in evidence. The jury had the opportunity of hearing and considering the evidence as it was revealed to it over a period of some few days. Each of those factors are real advantages which should not be underestimated. A bare reading of the transcript, by comparison, is, I consider, an inferior substitute for the advantageous position of the jury to which I have referred.[23]

120 The assessment by the jury of the plaintiff's pain and suffering damages, and of her economic loss damages, was dependent on the its conclusions as to the nature and degree of the injury suffered by the plaintiff as a result of the bullying that she experienced in the course of her employment with the defendant between 25 September 2013 and 7 March 2014. In turn, the jury's assessment of the plaintiff's injuries was, to an important degree, dependent on its findings concerning the nature and severity of the bullying to which the plaintiff had been subjected.

121 As counsel for the defendant has pointed out, the jury's verdict in answer to the first question was inscrutable. The question was formulated in general terms, namely, whether during the period between 25 September 2013 and 7 March 2014, there had been any bullying or harassment of the plaintiff by Ms Whitton. In her evidence, the plaintiff recounted a number of different instances of conduct by Ms Whitton which she alleged constituted such bullying or harassment. Those instances were summarised in the 'template' document that was provided to the jury to assist it in determining its answer to the first question. They included, in separate paragraphs, the following: the incident in September 2013 when the plaintiff was in the kitchen and she was verbally abused by Ms Whitton; the evidence by the plaintiff that throughout the employment period Ms Whitton repeatedly verbally abused her in the defendant's building; the plaintiff's evidence of the five or six telephone calls made by Ms Whitton to the plaintiff in which she expressed similar abuse; the evidence of contacts by Ms Whitton to Lane and Mara Richards in which she alleged that the plaintiff was using and dealing in drugs and was not a fit person to be working with children or young people as the REFHL coordinator; a discussion between Egan and Ms Whitton at her home in which Ms Whitton confirmed that she had made the statements that were contained in the plaintiff's letter of complaint to the defendant; derogatory comments made by Ms Whitton about the plaintiff to directors and Egan; and the incident on or about 1 July 2014 when the plaintiff and her mother were walking into the defendant's administration building and were abused by Ms Whitton.

122 Ultimately, it was a matter for the jury whether it was satisfied, on the balance of probabilities, that any or all of those incidents took place. If the jury was satisfied that the majority of those incidents did occur, then it would follow that it would have been satisfied that the plaintiff had been subjected to repeated and quite serious harassment and bullying by Ms Whitton. On the other hand, the jury might have been satisfied only as to one, or a small number, of the allegations contained in the plaintiff's evidence. The affirmative answer given by the jury to the first question did not reveal the view taken by the jury as to the nature, severity and potential effect of the bullying and harassment that it found had been engaged in by Ms Whitton against the plaintiff. As we have noted, the jury's assessment as to the nature and severity of the plaintiff's injuries, was dependent, to a material degree, on its conclusions as to those matters.

123 The plaintiff gave evidence as to the severe effect on her psychological wellbeing resulting from Ms Whitton's conduct to her. She gave evidence that she had attended her general practitioner for some time and had been prescribed medication for her condition. However, none of those medical practitioners were called to give evidence. The plaintiff's own evidence as to the medical treatment that she received for her condition, was quite brief. The jury was entitled to consider that the lack of evidence of such treatment was inconsistent with the plaintiff's evidence as to the severity of her condition, and that it reflected the nature and degree of injury suffered by the plaintiff.

124 The plaintiff gave evidence of the traditional forms of treatment that she had received with the assistance of Aboriginal Elders, by engaging in smoking and cleansing ceremonies, and reconnecting with her Country and her spirituality. That evidence was supported by the affidavit of Kay Dowdy. However, the evidence on that aspect of the case was, itself, quite limited. The jury was given very little insight into, or explanation of, the value and effectiveness of traditional Aboriginal healing therapies and practices. In the context of the evidence that was put before it, the jury was entitled to form the view that the plaintiff's complaints of experiencing serious psychological distress, as a result of the bullying and harassment by Ms Whitton, were not consistent with the limited amount of treatment that she had sought and received for that condition.

125 In assessing the severity of the plaintiff's injury, the jury was also entitled to take into account the activities in which the plaintiff had been engaged since she ceased employment with the defendant. During the balance of 2014, the plaintiff was able to successfully complete her studies for the certificate 4 in Aboriginal cultural heritage management. In more recent times, she had undertaken a short period of the work at La Trobe University. In addition, she had been involved on an ongoing basis with Nimmie-Caira. Most significantly, in November 2017, she was appointed a member of the VAHC, and subsequently she became the deputy chair of that Council. In that capacity, she had attended meetings of the Council in Melbourne every second month. Ordinarily, the meetings lasted for two to three days. In her work with the Council, she had been responsible for organising the return of ancestral remains to Country.

126 In assessing the damages to be awarded to the plaintiff, the jury was confronted with the conflicting evidence of, on the one hand, Dr Schutz, and on the other hand, Associate Professor Mendelson, as to the cause, nature and severity of the plaintiff's psychological injury, and the prognosis for it. In considering that evidence, the jury was required to bear in mind that the plaintiff bore the onus of proof in respect of her claim. Her case was, to a significant degree, necessarily dependent on the jury's acceptance of the evidence of Dr Schutz.

127 In that respect, the jury was entitled to consider that the opinion formed by Dr Schutz as to the plaintiff's condition, and as to her prognosis, had been significantly undermined in the course of cross-examination, in which Dr Schutz conceded that he had not been aware of, and had not taken into account, a number of factual matters which were relevant to his assessment of the plaintiff's psychological injury. Dr Schutz acknowledged, at the outset of the cross-examination, that his diagnosis depended on the accuracy of the information provided to him by the plaintiff, as well as his observations of her mental state. He stated that he was quite reliant on the history provided by the plaintiff in forming his opinion concerning the question of the cause of her injury, and her level of functioning. He accepted that if the information provided to him was unreliable, that would have compromised his ability to form an accurate opinion. Dr Schutz particularly agreed that the past history of the plaintiff was particularly relevant in determining the cause of the condition that she complained of.

128 As we have noted earlier, in our summary of his evidence, in cross-examination, Dr Schutz was taken through the plaintiff's clinical records in some detail. In that respect, he accepted that it would have been relevant for him to know of a number of matters noted in the clinical records, including that, before the plaintiff was subjected to the bullying complained of, she had, on a number of occasions, been prescribed medication for treatment of anxiety and depression. In addition, Dr Schutz had not been told of the circumstances which led to the plaintiff being charged with an assault on Ms Whitton in January 2009. Nor was he aware that, in 2011, she had been charged with wilful damage arising from the incident in which she struck a vehicle, belonging to one of the officers of the defendant, with a log splitter. Dr Schutz stated that if he had known about those matters, he would have explored them with the plaintiff in some detail, in order to better understand the relevant stresses which she had been experiencing at the time which had led to her involvement in those incidents. Dr Schutz accepted that that further information might have caused him to modify his opinion, and that he would have required further detailed information, and probably a reassessment of the plaintiff, in order to formulate his opinion.

129 Certainly, as counsel for the plaintiff has pointed out, there are a number of matters which might be raised in criticism of the opinion formed by Associate Professor Mendelson. Associate Professor Mendelson examined the plaintiff without first reading her clinical notes, and subsequently he relied on the matters contained in those clinical notes in forming his conclusion concerning the plaintiff's psychological injury. Further, Associate Professor Mendelson did not obtain a history from the plaintiff that she suffered panic attacks, flashbacks and nightmares. Those matters might fairly be considered to have potentially detracted from the weight that might be given to Associate Professor Mendelson's opinion. In his final address, senior counsel for the plaintiff forcefully drew those matters to the attention of the jury. Each of those points were relevant to the jury's assessment of the evidence of Associate Professor Mendelson. The question of the extent to which they detracted from the validity of the opinions formed by Associate Professor Mendelson, and the weight to be given to them, was essentially a matter for the jury as the judges of the facts in the case. Contrary to the submission made on behalf of the plaintiff, we are not persuaded that they required the jury to discount or disregard the conclusions formed by Associate Professor Mendelson.

130 In those circumstances, the jury had before it the competing opinions expressed by two psychiatrists, one of whom was called as a witness for the plaintiff, and the other was called for the defendant. As we have discussed, there was a substantial basis upon which the jury was entitled to have significant reservations about the opinion formed by Dr Schutz as to the nature and degree of the psychological injuries sustained by the plaintiff, and as to the prognosis in respect of it. Taken in its totality, the expert medical evidence in the trial did not require the jury to conclude that the plaintiff had sustained a serious and enduring psychological injury of the kind described by Dr Schutz.

131 The determination by a court, and in particular a jury, of an injured plaintiff's claim for general damages for pain, suffering and loss of enjoyment of life, is very much a matter of evaluation and assessment. As we have discussed, in the present case, that assessment was dependent on a number of factors, including the jury's conclusions as to the nature and degree of the bullying to which the plaintiff had been subjected, the extent to which she had been emotionally and psychologically injured by it, and the degree, if any, to which the jury considered the plaintiff might continue to suffer from that injury in the future.

132 For the reasons we have discussed, the jury was not required to accept the evidence of the plaintiff, or of Dr Schutz, concerning the nature and extent of the injury sustained by her. The award by the jury of $30,000 by way of general damages for pain, suffering and loss of enjoyment of life indicates that the jury was satisfied that the plaintiff's injuries were not as severe, or as enduring, as that diagnosed by Dr Schutz. Taking into account the inscrutability of the jury's answer to the first question, the paucity of evidence relating to treatment received by the plaintiff over the period of five years since she ceased her employment with the defendant, the level of activities undertaken by the plaintiff during that time, the criticisms made by the defence of Dr Schutz's evidence in cross-examination and in final address, and the conclusions formed by Associate Professor Mendelson, it cannot be concluded that the award of damages by the jury for general damages was unreasonable or not open to the jury on the evidence.

133 The evidence adduced in relation to the plaintiff's earning capacity was quite limited. Apart from her evidence that she had in the past worked in a variety of roles for the defendant during the previous two decades, and that she had been engaged in some other positions, no evidence was put before the jury as to her past employment history. The plaintiff did not tender any taxation records, or other accounting documents, in respect of her previous earnings. The only evidence that was adduced concerning her earnings was the letter of appointment by the defendant dated 14 August 2013, stating that her remuneration (based on a three-day week) was $598.20 gross per week. The plaintiff did not adduce any evidence as to the kind of employment in which she might have been engaged since the termination of her employment with the defendant in 2014, if she had not been injured. Nor did the plaintiff call any evidence as to the type of work which, if she were not injured, she might have been able to undertake in the future. In short, the evidence, that was put before the jury, relating to the plaintiff's claim for past and future loss of earning capacity, was particularly limited.

134 As counsel for the defendant has pointed out, the amount awarded to the plaintiff, for economic loss damages, equated to approximately twelve months' loss of net earnings, based on the plaintiff's income with the defendant. In light of the matters that we have discussed relating to the plaintiff's lack of medical treatment for her condition, her level of activity since the cessation of her employment with the defendant, and the matters we have discussed relating to the expert evidence of Dr Schutz and Associate Professor Mendelson, we consider that it was open to the jury to conclude that such a measure of damages was sufficient to compensate the plaintiff for her past and future loss of earning capacity. We are not persuaded that such an award of damages in respect of the plaintiff's economic loss claim was unreasonable or not open to the jury.

135 For those reasons, we are not persuaded that the verdicts of the jury on the plaintiff's claims for pain and suffering damages and economic loss damages were not reasonably open on the evidence. Accordingly, ground 2 of the application for leave to appeal is not made out.

136 For the foregoing reasons, we have concluded that the plaintiff has not succeeded on ground 1 or ground 2. It follows that the application for leave to appeal must be refused.

137 The jury having returned verdicts for economic loss damages and pain and suffering damages that were below the thresholds set out in s 134AB(22) of the Act, as we have already said, the judge entered judgment for the defendant. Pursuant to s 134AB(27)(b)(ii), the judge then ordered each party to bear their own costs.

138 The defendant seeks leave to appeal against the judge's order for costs, contending that the costs of the proceeding were governed by s 134AB(28)(a) - a provision, which, if applicable, would have required the judge to order the plaintiff to pay the defendant's costs of the proceeding.

139 In order to understand the parties' arguments in relation to the defendant's application for leave to appeal, it is necessary to set out in full the relevant subsections of s 134AB which deal with the question of costs, s 134AB(27) and s 134AB(28).

(27) Subject to the rules of the court -

(a) in proceedings relating to an application for leave of the court under subsection (16), costs are to be awarded against a party against whom a decision is made; and

(b) unless subsection (28) applies in proceedings for the recovery of damages in accordance with this section -

(i) if no liability to pay damages is established, costs are to be awarded against the claimant; and

(ii) if damages are assessed but cannot be awarded under this section, each party bears its own costs; and

(iii) if damages are awarded, costs are to be awarded against the Authority or self-insurer.

(28) In proceedings for the recovery of damages commenced in accordance with this section after a statutory offer was made, or deemed to have been made, under subsection (12) -

(a) if no liability to pay damages is established, the worker must pay the party and party costs of the employer, Authority or self-insurer and the worker's own costs;

(b) if judgment is obtained or a settlement or compromise is made in an amount not less than 90 per cent of the worker's statutory counter offer under subsection (12) and more than the statutory offer of the Authority or self-insurer, the Authority or self-insurer must pay the worker's party and party costs and its own costs;

(c) if judgment is obtained or a settlement or compromise is made in an amount not more than the statutory offer of the Authority or self-insurer under subsection (12), the worker must pay the party and party costs of the Authority or self-insurer and the worker's own costs;

(d) if judgment is obtained or a settlement or compromise is made in an amount that is more than the statutory offer of the Authority or self-insurer under subsection (12) but less than 90 per cent of the worker's statutory counter offer under that subsection, each party bears its own costs -

and the court must not otherwise make an order as to costs.

142 The relevant subsections of s 134AB dealing with the making of statutory offers are sub-ss (12) and (13). Subsection (12) provides for the making of a statutory offer at a settlement conference, and prohibits a worker from commencing common law proceedings until after the making of a statutory counter-offer (also provided for in the subsection). Section 134AB(13) then provides:

(13) If the Authority or self-insurer does not make a statutory offer under subsection (12), the Authority or self-insurer is deemed, for the purposes of that subsection, to have made, on the 60th day after the response date, a statutory offer of nothing.

143 On 13 June 2017, the solicitors for the defendant wrote to the solicitors for the plaintiff enclosing what they said was a statutory offer for the purposes of s 134AB(12)(b) of the Act. The letter provided:

The sum recorded in the offer of $0.00 is a net amount after the reduction required by s 134AB(25) of [the Act].

For the avoidance of doubt, if the offer is accepted, there is no requirement for [the plaintiff] to repay statutory compensation already received pursuant to [the Act].

144 The enclosed statutory offer was headed 'Section 134AB(12)(b) Statutory Offer', using the prescribed Form B.[24] At the part of the form where the amount in words was required to be inserted, the word 'zero' was typed. In the section of the form dealing with the figure, '$0.00' was typed.

145 In argument before the judge, the defendant contended that s 134AB(28)(a) applied because no liability to pay damages had been established by the plaintiff and, in accordance with the provision, the only order the Court could make was that the plaintiff pay the defendant's costs.

146 On the other hand, the plaintiff contended that the issue of costs was governed by the more specific provision in s 134AB(27)(b)(ii). The plaintiff's damages had been assessed by the jury but could not be awarded under s 134AB because of the operation of sub-s (22). In those circumstances, the order for costs mandated by sub-s (27) was that each party bear its own costs.

147 The judge concluded that s 134AB(27)(b)(ii) applied, and thus ordered each party to bear their own costs.[25] In doing so, the judge upheld a submission made by the plaintiff that an offer of zero is not a statutory offer to which sub-s (28) applied.[26]

148 In support of its contention that an offer of zero was a valid statutory offer under s 134AB(12), and was thus one capable of engaging the operation of s 134AB(28), the defendant submitted to the judge that an offer of nothing (zero) was expressly contemplated by the terms of s 134AB(13). Moreover, if no valid statutory offer was made under sub-s (12) then sub-s (13) provided that a statutory offer of nothing was deemed to have been made. The judge rejected this submission. She then said that sub-s (28)

in fact refers to an offer deemed to have been made under sub-s (12). It is not a reference to sub-s (13) ... .[27]

149 The judge expressed her ultimate conclusion in the following terms:

Subsection (28) does not apply because a statutory offer of zero is not a statutory offer ... .[28]

The judge finished her reasons by saying that, having found that sub-s (28) had no operation unless a statutory offer had been made - 'not the situation in the present case'[29] - sub-s (27)(b)(ii) applied. Accordingly, she ordered each party to bear their own costs.[30]

150 In its proposed ground of appeal, the defendant contended:

The trial judge erred by holding that a statutory offer of zero was 'not a statutory offer' and was not an offer to which s 134AB(28)(a) of [the Act] applied.

151 The defendant submitted that nothing in the text of the Act (explicitly or implicitly) required a statutory offer to be in an amount greater than zero. Moreover, sub-s (13) expressly contemplated that an offer of zero might be made - that being the statutory offer deemed to be made if no offer was in fact made. Alternatively, if the judge was correct in holding that no valid statutory offer was made then sub-s (13) operated to deem an offer of zero to have been made.

152 The defendant also submitted that sub-s (28)(a) applied because no liability to pay damages was established by the plaintiff. To the extent that the defendant's submissions involved the depriving of sub-s (27)(b) of any effective operation, the defendant sought to meet this problem by reference to the legislative history of ss 134AB(27) and (28). In summary, the relevant legislative history was as follows:

(1) On 1 December 1992, s 135A(13), the forerunner to s134AB(27), was enacted as part of a new s 135A of the Act. Section 135A contained provisions permitting workers to commence common law proceedings for damages in respect of serious injuries. At that time, there were no provisions in the Act dealing with pre-litigation offers.

(2) On 12 November 1997, s 135A was amended to include provisions dealing with pre-litigation offers. At that time, s 135A(13A), the forerunner to s 134AB(28), was inserted into the Act. The pre-litigation offer process applied to all damages proceedings instituted on or after 12 November 1997, but not before.[31] Thus, s 135A(13) remained in the Act as it still had application to proceedings that had been instituted prior to 12 November 1997, whenever such proceedings were finally determined.

(3) Between 12 November 1997 and 19 October 1999, a period referred to in some authorities in this field of discourse as 'the black hole',[32] common law claims for damages in respect of employment injuries were limited to claims under pt III of the Wrongs Act 1958 or claims 'subject to and in accordance with the Transport Accident Act 1986'.[33]

(4) On 20 October 1999, s 134AB was enacted, permitting workers to commence common law proceedings for damages again in respect of serious injuries. Section 134AB(27) was enacted in the form of s 135A(13), and s 134AB(28) in the form of s 135A(13A)

153 The defendant submitted that, having regard to this legislative history, it was plain that while s 135A(13)(b) had work to do after the enactment of s 135A(13A) (applying as it did to proceedings commenced before 12 November 1997), there was no practical need for sub-s (27)(b) to be included when s 134AB was enacted with effect on 20 October 1999.

154 The defendant concluded this aspect of its argument in its written case by submitting:

For practical purposes [s 134AB(27)(b)] was, when enacted, and is, at least at the present time, surplusage. Other than what is conceded to be an unlikely scenario,[34] on the current state of the law, there is no situation where there is no statutory offer made or deemed to have been made. ... Thus the presence of sub-s (27) in s 134AB was, and is, a quirk of the many 'piecemeal' amendments that resulted from the different time periods for which different rules applied for damages claims at common law. As has been observed, and for this among other reasons, many of [the provisions of the Act] are 'confused and confusing'.[35]

155 In this Court, the plaintiff took a different position from that taken at trial. Having argued at trial that an offer of nothing was not a valid statutory offer, the plaintiff now accepts that the defendant's statutory offer of zero was a valid statutory offer.

156 By a notice of contention, the plaintiff, however, seeks to support the judge's costs order by submitting that sub-s (28) (and specifically, paragraph (a) thereof) had no application in the present case because the plaintiff established a liability to pay damages, but for an amount which was below the statutory thresholds. No paragraph of sub-s (28) being applicable, costs fell to be dealt with under sub-s (27)(b)(ii).

157 In answer to the defendant's surplusage argument, the plaintiff observed that sub-ss (27) and (28) have been re-enacted as ss 344(1) and (2) of the Workplace Injury Rehabilitation and Compensation Act 2013. The explanatory memorandum in relation to those subsections describes them as setting out the different rules relating to legal costs in damages proceedings 'depending on the outcome of such proceedings and the statutory offer and counteroffer made, or deemed to have been made, by the parties prior to the proceedings'.[36] The plaintiff submitted that, while the language of the explanatory memorandum does not provide 'unequivocal guidance', it was noteworthy that there was specific reference to the continued existence of the re-enacted provision contained in sub-s (27)(b) of the Act.

Which subsection of s 134AB applied to the costs of this proceeding?

158 By its terms, s 134AB(27)(b) applies unless sub-s (28) applies. There was no dispute between the parties that the plaintiff's proceeding was commenced in accordance with s 134AB. Contrary to the judge's conclusion, there can be no doubt that the proceeding was also commenced 'after a statutory offer was made, or deemed to have been made, under sub-s (12)'. There is nothing in the Act that prevents the making of a statutory offer of 'nothing'. With respect to the judge, her conclusion to the contrary finds no support in the text of the relevant statutory provisions. To the contrary, the fact that where no statutory offer is in fact made there is a deemed statutory offer of nothing shows that, on its proper construction, s 134AB(12) permits a statutory offer of nothing (or zero) to be made.

159 To the extent that the judge held that there was a deemed statutory offer but that it was not made under sub-s (12),[37] that conclusion was also, with respect, erroneous. While sub-s (13) is the subsection that deems a statutory offer to have been made, it is, by its terms, deemed to have been made for the purposes of sub-s (12). Properly construed, there is no basis for concluding that statutory offers that have been deemed to have been made do not come within sub-s (28). To hold otherwise would be to deprive the words 'or deemed to have been made' in sub-s (28) of any operative effect.

160 Having reached these conclusions, the issue then becomes whether any of paragraphs (a) to (d) of sub-s (28) applied. The only relevant possibilities are paragraphs (a), which is relied upon by the defendant, and (c), upon which the defendant has not relied. Almost certainly, the defendant has not sought to rely on paragraph (c) because no judgment was obtained by the plaintiff 'in an amount'.

161 The question then becomes what is meant by the words 'if no liability to pay damages is established' in paragraph (a). These are the same words used in sub-s (27)(b)(i) of the Act. In sub-s (27)(b), the position of 'no liability to pay damages is established' is, of course, to be contrasted with the position described in sub-paragraph (ii) where 'damages are assessed but cannot be awarded under this section'.

162 In oral argument, counsel for the defendant submitted that, in their context, the words 'no liability to pay damages is established' were to be given different meanings in sub-ss (27)(b)(i) and (28)(a). The circumstance described in sub-s (27)(b)(ii) was said to be a subset of the circumstances referred to in sub-s (27)(b)(i). That is, sub-s (27)(b)(ii) was intended to ameliorate what might have been thought to be too harsh an effect of sub-s (27)(b)(i). The amelioration of that harshness, however, was not replicated by the legislature in sub-s (28).

163 We reject these submissions. In our view, the expression 'if no liability to pay damages is established' in sub-s (28)(a) should be given the same meaning and operative effect as the same expression in sub-s (27)(b)(i). There is no contextual reason why there should be different meanings.[38] It follows then that this expression does not encompass the case where damages are assessed but cannot be awarded because of the operation of s 134AB(22). The expression 'no liability to pay damages' encompasses the case where the worker (plaintiff) failed on the question of liability, rather than the case where he or she succeeded - but in an amount below the statutory thresholds. This construction also has the advantage of not holding that any part of sub-s (27) is mere surplusage.

164 Counsel for the defendant submitted in oral argument that, notwithstanding the difficulty associated with a construction that gives different meanings to the same words in the one section, a construction which gives operative effect to sub-s (27)(b) had the capacity to lead to results which might be thought unreasonable. Specifically, he highlighted the case of a plaintiff who might obtain a very substantial assessment of damages, in excess of the statutory offer but less than 90 per cent of the statutory counter offer. In such circumstances, under sub-s (28)(c), that plaintiff would be required to pay the costs of the proceeding. Whereas another plaintiff in respect of whom the same statutory offer and counter offer had been made, but whose damages were assessed in amounts less than the thresholds referred to in sub-s (22) would only have to bear his or her own costs. The defendant submitted that it could not have been the intention of the legislature that the plaintiff whose damages were assessed in the larger amount should do worse than the plaintiff whose damages were assessed in the smaller amount, on the issue of costs.

165 The short answer to this argument is that one of the 'quirks' referred to by the defendant in its written case of the many 'piecemeal' amendments that have been made to the Act is that from time to time one can identify circumstances which produce results that might reasonably be thought to be not entirely consistent. The fact that one can posit different cases where one worker might be thought to be treated more favourably than another by reason of the operation of the act does not, however, provide a basis for this Court to adopt a construction which would involve a subsection of the Act (sub-s (27)(b)) being given no realistic operative effect; or adopting a construction which would involve giving different meanings to the same words used in different places in the same section of the Act.

166 It follows from what we have said above that none of the paragraphs in sub-s (28) had application in this case, and the costs of the proceeding fell to be determined under s 134AB(27)(b)(i). The judge was thus correct to order that each party bear their own costs of the proceeding.

167 Both applications for leave to appeal should be refused.

[1] Havea v Murray Valley Aboriginal Cooperative Ltd [No 4] (Unreported, County Court of Victoria, Judge K L Bourke, 8 October 2019) ('Costs Ruling').

[2] Havea v Murray Valley Aboriginal Cooperative Ltd (Ruling) (Unreported, County Court of Victoria, Judge K L Bourke, 11 September 2019) ('Jury Discharge Ruling').

[3] Transcript of Proceedings (10 September 2019) 585.19-585.25.

[6] Smout v Smout [1989] VicRp 74; [1989] VR 845, 850-1 (Kaye J), 854 (Beach J) ('Smout').

[7] [1930] NSWStRp 14; (1930) 30 SR (NSW) 137.

[9] Morgan v John Fairfax & Sons Ltd (1988) 13 NSWLR 208, 212 (Kirby P), 239 (Clarke JA) ('Morgan').

[10] (1989) 16 NSWLR 363.

[12] Morgan (1988) 13 NSWLR 208, 215 (Kirby P); Smout [1989] VicRp 74; [1989] VR 845, 852 (Kaye J); Green v Emergency Services Telecommunications Authority [2014] VSCA 207, [73] (Ashley, Priest and Santamaria JJA).

[13] (1991) 173 CLR 33; [1991] HCA 23.

[14] Ibid 41 (Mason CJ, Deane, Toohey and McHugh JJ) (emphasis in original). See also Hocking v Bell [1945] HCA 16; (1945) 71 CLR 430, 440, 442 (Latham CJ), 468 (Rich J), 487 (Starke J), 499 (Dixon J); Zoukra v Lowenstern [1958] VicRp 94; [1958] VR 594, 596 (Herring CJ, O'Bryan and Deane JJ) ('Zoukra'); Precision Plastics Pty Ltd v Demir [1975] HCA 27; (1975) 132 CLR 362, 369; [1975] HCA 27 (Gibbs J); Butcher v Australian Tartaric Products Pty Ltd [2009] VSCA 303, [8] (Ashley JA, Buchanan and Weinberg JJA agreeing at [1], [135]); Munday v Court [2013] VSCA 279, [26] (Priest JA) ('Munday').

[15] [2003] HCA 50.

[17] Zoukra [1958] VicRp 94; [1958] VR 594, 595 (Herring CJ, O'Bryan and Dean JJ); Liftronic Pty Ltd v Unver [2001] HCA 24, [29]-[30] (McHugh J), [64] (Kirby J) ('Liftronic'); Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, 141 [71]; [2003] HCA 22 (McHugh J); Capers v Victoria [2011] VSCA 97, [35] (Ashley JA, Warren CJ and Kyrou AJA agreeing at [38], [39]) ('Capers').

[18] Pujick v Savic [1971] VicRp 76; [1971] VR 632, 634 (Winneke CJ, Starke and Anderson JJ); Capers [2011] VSCA 97, [35] (Ashley JA, Warren CJ and Kyrou AJA agreeing at [38], [39]); Munday [2013] VSCA 279, [25], [29] (Priest JA); Willett v Victoria [2013] VSCA 76; (2013) 42 VR 571, 576 [8]; [2013] VSCA 76 (Tate and Priest JJA).

[19] Liftronic [2001] HCA 24, [64] (Kirby J). See also Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529, 532; [1985] HCA 34 (Gibbs CJ, Mason, Wilson, Brennan and Deane JJ).

[20] (1985) 3 NSWLR 700.

[21] Ibid 707-8 (citations omitted). See also Cook v Karden Disability Support Foundation [2016] VSCA 263, [40] (Tate, Osborn and Beach JJA) ('Cook').

[22] [2015] VSCA 67.

[23] Ibid [20] (citations omitted). See also Srbinovski v Americold Logistics Ltd [2015] VSCA 139, [43] (Warren CJ, Tate JA and Digby AJA); Vella v Cardona [2015] VSCA 306, [59] (Beach and Kyrou JJA, Cavanough AJA); Cook [2016] VSCA 263, [41] (Tate, Osborn and Beach JJA); Collins v Staminirovitch [2017] VSCA 342, [84] (Santamaria, Kyrou and Kaye JJA).

[24] See Neate v Air Creations Design & Installation Pty Ltd [2018] VSCA 300, [13] (Tate, Beach and Kaye JJA) (coincidently, another case where the statutory offer was 'zero dollars').

[31] Victoria v Robertson [2000] VSCA 113; (2000) 1 VR 465, 474-5 [27]; [2000] VSCA 113 (Batt JA, Callaway and Buchanan JJA agreeing at [1], [27]).

[32] See, eg, Stipanov v Mier [2008] VSCA 116, [152] (Ashley JA); Primary Health Care Ltd v Giakalis [2013] VSCA 75; (2013) 38 VR 165, 171 [21]; [2013] VSCA 75 (Kaye AJA).

[33] See s 134A as inserted into the Act on 12 November 1997 by s 45 of the Accident Compensation (Miscellaneous Amendment) Act 1997.

[34] Identified by Cavanough J in O'Neill v T D Williamson [No 2] [2008] VSC 430, [15], n 24 (a case involving a proceeding which continues notwithstanding a worker's non-compliance with the steps in s 134AB(12)).

[36] Explanatory Memorandum, Workplace Injury Rehabilitation and Compensation Bill 2013, 168.

[38] See Tabcorp Holdings Ltd v Victoria [2016] HCA 4, [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ); Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29, [95] (Edelman J).