Pateras v State of Victoria [2017] VSCA 31

38 That evidence forms the background to the assessment of whether Mr Newland was, as at 22 October 2017, under a duty not to cause the applicant psychological harm when the applicant was interviewed for the LT1 position (was psychiatric injury to the applicant reasonably foreseeable?) and whether in the discussion that duty was breached.

39 Mr Newland was aware that the applicant had been stressed and nervous during the selection and interview process; he also understood that she had been physically unwell. However, his evidence was that he did not have any concerns about her mental state, as distinct from normal nervousness and anxiety. Although the applicant had left the second interview upset, Mr Newland believed that he would be providing her with good news that she had been successful in her application.

40 On 10 December 2007, the applicant submitted a WorkCover claim in which she said that her injury was in the form of 'stress and anxiety' which was 'in response to a meeting with the Principal and the lack of action by DEECD in my crisis situation'.

41 At the hearing of the appeal, the parties were agreed that the issues before the trial judge were:

(a) whether a relevant duty of care not to cause the applicant psychological injury existed as at 22 October 2007;

(b) whether the conduct of Mr Newland in the discussion that took place after the 22 October 2007 interview involved a breach of that duty;

(c) on the assumption that the duty not to cause the applicant psychological harm had been engaged so soon as the applicant was certified unfit to work by reason of stress, did the servants or agents of the respondent breach that duty in the manner in which:

42 In the relevant part of his reasons, the trial judge said:

From these authorities, in a case such as this where a claim is made by an employee claiming bullying, intimidation, isolation or failure to support, the following principles are of relevance:

• the nature and content of the duty of care owed by the employer is informed by the contract of employment, the nature of the work undertaken and the nature of the relationship between the employer and the employee.
• The question is then whether the kind of psychiatric harm subsequently suffered is reasonably foreseeable in the circumstances which existed at the time. Relevant to that is whether the employer had notice of unexplained absences from work, particular behaviour, medical evidence or other factors which would indicate an employee had a susceptibility or proclivity to psychological decompensation and injury.
• Part of the test is concerned with whether the employee believes he or she is capable of taking on the work.
• The test also requires consideration of whether it was reasonably foreseeable that the conduct complained of was likely to result in the type of mental anguish that could give rise to a recognised psychiatric injury.
• The duty by the employer, which is owed, does not require 'absolute and unremitting solicitude' for an employee's mental well-being, and should not be viewed with the convenience of hindsight.
• The fact that a workplace issue is not handled as sensitively as it might otherwise have been does not necessarily give rise to a breach of the duty. Disappointed ambition in a workplace is common. Psychiatric decompensation as a result is not.

In determining whether the risk of psychological injury was foreseeable to the State, it is first necessary to understand the nature of the psychological injury suffered. According to the plaintiff's treating psychiatrist, Dr Mohr, she has suffered a Chronic Adjustment Disorder with severe depressive symptoms. This condition has fluctuated somewhat over the years, and in the early years, particularly 2008 and 2009, her symptoms, which include sleep disturbance, high anxiety, palpitations, shortness of breath, depressive symptoms, including low mood, tearfulness, agitation, and affect upon concentration and memory, all were debilitating. Over the years, her condition has required treatment with antidepressant and psychotropic medication. Of more recent times, Ms Pateras' psychological condition has improved, although she still remains fragile and subject to stressors.

As the authorities have prescribed, it is necessary to examine Ms Pateras' psychological state, and the extent to which teachers at the College or others in the Department were aware of that state.

According to Ms Pateras' statement, she had minimal absences from work prior to 2006. Between February 2006 and October 2007, she had a significant amount of sick leave or carer's leave. These absences were explained by her as resulting, on the one hand, from the need to care for her son who had glandular fever, and on the other hand, were related to gynaecological problems.

Although from the notes of Dr Milone, Ms Pateras had several short episodes of depression in 2003, and then some period of two weeks or so away from work because of stress in October 2006, there is no evidence to suggest that those difficulties were relayed to the College authorities or teachers. While Ms Pateras was treated by Dr Muller-Robbie in 2006 and Ms Garfi, a psychologist, in 2007, again, there was no suggestion the episodes which took her to those practitioners were relayed to the College authorities or teachers. In fact, according to Ms Pateras' statement:

'I did not suffer any psychiatric illness at this time [2006 and 2007]. I was undergoing counselling in respect of my marriage separation. Mr Newland and Ms Gigatsis were informed of these matters.'

By 'these matters', I took Ms Pateras to mean the counselling in relation to her marriage separation.

Further in her statement, Ms Pateras referred to interpersonal conflict with Mr Newland and Mr Mooney. However, this related to time that she had spent away from work, and the consequent additional workload on other teachers. It was put to Ms Pateras that she had suffered depression and anxiety before October 2007. She said that she had some counselling with a counsellor, was not suffering anxiety and was depressed about certain matters. The matters about which she was depressed was the breakdown of her relationship with her former husband, and its effect upon her children.

Turning to the two interviews which Ms Pateras underwent, she said that while she was a little nervous at the first interview, she thought it went well.

At the second interview, she felt stressed and anxious when she was asked personal questions. She had rescheduled the second interview but that was to accommodate an ultrasound examination. She disagreed that she was 'very unwell through the process'. Matters of her health and personal circumstances were raised by her, but that was largely related to the prospect that she might leave the Werribee area. She became upset towards the end of the second interview.

From this evidence, I conclude that while the College authorities, and possibly the teachers would have known Ms Pateras had significant time away from the College in 2007, this was in order to look after her son, and for physical gynaecological problems, nothing to do with stress or anxiety. Further, although she had some difficulties in the interview process, they were not such as to put Mr Newland or anyone else on alert that either continuing the interviews, or asking her to sit down with Mr Newland later in the day, on 22 October 2007, was likely to cause any stressful reaction. In fact Ms Pateras acknowledged at the second interview, she was offered to have it rescheduled, but refused on the basis that she felt quite capable of handling it.

Bearing in mind these matters and legal [principles], and even accepting those at the College and the DEECD failed to appropriately facilitate a return to work for the plaintiff, and that the conduct by Mr Newland in the interview on 22 October was aggressive or inappropriate, I am not satisfied that, given Ms Pateras' past history and conduct, there was anything to indicate that she might suffer the significant psychiatric injury which subsequently transpired. At best, what could be said is that she might be disappointed, offended or upset. It should further be said that, to the extent that she was disappointed, offended or upset, all of that could be readily cured by her responding to Mr Newland's emails to sit down and talk about the issues and attempt a sensible resolution. Sadly, that did not occur.[19]

43 The applicant has identified four proposed grounds of appeal.

(a) the trial judge erred in finding that her psychiatric injury was not reasonably foreseeable applying the test in Koehler[20] and, in particular, he erred in considering that the question was whether 'the kind of psychiatric harm suffered was reasonably foreseeable'.[21]

(b) the Court should have found that, given numerous indications that she was experiencing anxiety and other physical stress to various actors of the State, it was reasonably foreseeable that she would suffer a psychiatric injury as subsequently transpired.

(c) the question of law is: whether the Court should have found, based on the evidence available to it, that the risk of psychiatric harm to the applicant was reasonably foreseeable.

(a) the trial judge erred in finding that that 'none of the acts, failures or omissions alleged by Ms Pateras against the teachers of the College and others in the Department of DEECD, constituted a breach of that duty of care',[22] when read together with other aspects of his reasons which make it clear that he considered the duty of care of each staff member individually.

(b) the Court should have found that, given the various conduct by different actors of the State, there was a breach of the duty of care when the conduct was taken as a whole even though each actor may not separately have breached a duty of care.

(c) the question of law is: whether the Court should have considered, based on the evidence available to it, that there was a breach of the duty of care of by the State through all of its actors employed by the DEECD.

46 In her third proposed ground, the applicant said that there were errors of fact and breaches of procedural fairness arising from the failure by the respondent to produce documents relevant to issues in dispute. In particular, she said:

(a) she was denied procedural fairness due to the respondent's failure to produce documents relevant to issues in dispute during the proceedings that were in the respondent's possession and have been provided to her pursuant to a Freedom of Information request and by a witness following the trial;

(b) the failure to produce these documents at trial denied her a fair trial and was a breach of the Model Litigant Guidelines to which the respondent was subject both expressly and at common law; and

(c) had these documents been produced and available to the trial judge, if given adequate weight they would have altered his findings as to credibility of the respondent's key witness, Mr Newland, and changed findings of fact including in relation to Mr Newland's account of his conduct towards the applicant during the two key contentious issues of fact.

47 In her fourth ground of appeal, the applicant said that the trial judge failed in his duty to assist her as a self-represented litigant. In particular, she says:

(a) the duty to assist unrepresented litigants requires the provision of assistance to diminish, so far as this is possible, the disadvantage an unrepresented litigant will ordinarily suffer when faced with a lawyer and to prevent the litigant being destroyed by the traps which our adversary procedure offer to the unwary and untutored;

(b) she was denied procedural fairness due to the trial judge's failure to provide adequate assistance to her as a self-represented litigant. An example of this was she was cross-examined for 8 days. By contrast she was told she could not complete her cross-examination of the respondent's key witness, Mr Newland, despite stating that she had 'only five minutes to go'. A number of other examples are detailed in the Applicant's written case; and

(c) the breach of the duty to assist her as an unrepresented litigant constituted a denial of procedural fairness and warrants the setting aside of the decision below and remitting the matter for a fresh trial.

48 The applicant said that the trial judge had misapplied Koehler; it was not necessary for the particular kind of psychiatric harm to be foreseeable. Further, the trial judge had erred in assessing the conduct of each staff member towards the applicant individually and not their conduct towards her 'as a whole'. She also contended that the trial judge had made erroneous findings of fact in deciding that there had been nothing observable about her conduct that gave any indication of the psychiatric injury that subsequently transpired. Those erroneous findings had arisen from the failure of the trial judge to give proper consideration to relevant evidence which showed the applicant to have been stressed and anxious and to have drawn the proper inferences from that evidence.

49 The applicant also pointed to the fact that, in deciding the case, the trial judge had made a decision as to the credibility of the applicant and Mr Newland as to the two keys issues: (a) the events of 22 October 2007; and (b) the circumstances surrounding her return to work. If the fresh evidence application was successful and the fresh evidence was admitted, it would show that the trial judge was in error in preferring to believe Mr Newland rather than the applicant on these key issues.

50 Finally, the applicant contended that she had been deprived of a fair trial by reason of the trial judge failing to give her the requisite assistance. After he had ruled some of her witness statement inadmissible, he failed to assist her to have the evidence in admissible form. He had also prematurely terminated her crossexamination of Mr Newland, who was the key witness for the respondent.

51 The applicant contends that, in purporting to apply Koehler, the trial judge misstated the test. In particular, she contended that the trial judge erred in holding that, to establish the duty of care, it was necessary for the particular kind of psychiatric harm to be foreseeable.

52 Read as a whole, it cannot be said that the trial judge held that, before any duty was engaged, the applicant had to show that the particular psychological damage from which she suffered was foreseeable. It is one thing to insist that psychological damage was reasonably foreseeable; it is another to insist that the particular form of psychological damage that a plaintiff complains about must have been reasonably foreseeable. It seems to us that, as much as the judge was doing was to require that there were facts and circumstances that made psychological damage reasonably foreseeable, not that the applicant had to show that the particular form of damage that she suffered was reasonably foreseeable.

53 It is true that, at times, the trial judge expressed himself in a way that might suggest that he had taken the relevant test to be that a plaintiff had to show that the particular form of psychiatric injury that the plaintiff suffered from was reasonably foreseeable.[23]

54 Judgments are not to be read if they are statutes.[24] When one examines the manner in which the trial judge applied the relevant tests, it is plain that he did not misapply the test in Koehler. Having examined the evidence, he found that the College authorities would not have understood the applicant's absences from the school as having anything to do 'with stress or anxiety'; they would have understood that they were explained by her need to care for her son and her own gynaecological problems.[25] He also found that, while there had been difficulties in the interview process they were not such as to put Mr Newland or anyone else on alert that either continuing the interviews, or asking her to sit down with Mr Newland later in the day, on 22 October 2007 was likely to cause any stressful reaction. In fact, the applicant acknowledged that, at the second interview, Mr Newland offered to have it rescheduled, but that she had refused on the basis that she felt quite capable of handling it.[26] The trial judge said:

Bearing in mind these matters and legal principals, and even accepting those at the College and the DEECD failed to appropriately facilitate a return to work for the plaintiff, and that the conduct by Mr Newland in the interview on 22 October was aggressive or inappropriate, I am not satisfied that, given Ms Pateras' past history and conduct, there was anything to indicate that she might suffer the significant psychiatric injury which subsequently transpired. At best, what could be said is that she might be disappointed, offended or upset. It should further be said that, to the extent that she was disappointed, offended or upset, all of that could be readily cured by her responding to Mr Newland's emails to sit down and talk about the issues and attempt a sensible resolution. Sadly, that did not occur.[27]

It is plain from this how high the trial judge considered the evidence rose. All that was reasonable foreseeable was that the applicant 'might be disappointed, offended or upset'. The onus was upon the applicant to show that much more was reasonably foreseeable.

55 In so far as the duty had not been engaged, no question of breach arises. That said, we can see nothing in the trial judge's conclusion that the conduct of Mr Newland might have involved any breach of any such duty or that it caused the applicant to suffer. As the trial judge put it, the applicant's career as a teacher came to an end:

largely as a result of a misunderstanding with Mr Newland and others at the College, following the events of 22 October 2007. That result lies largely at the feet of Ms Pateras for failing to respond to Mr Newland's request for a sensible discussion about what had occurred, her uncompromising attitude to the appointment to the LT1 position and her unassailable view that other teachers at the school and in the DEECD, rather than herself, were responsible for the sad state of affairs.[28]

The failure to treat the employees of the State 'as a whole'

56 In her second ground of appeal, the applicant complains that the trial judge assessed the conduct of the persons that the applicant considered responsible for her injuries on an individual basis and not 'as a whole'. In her written submissions, the applicant said that the trial judge had concluded that (at [281]):

the State undoubtedly owed its employee, Ms Pateras, a duty to take reasonable care against the risk of foreseeable psychiatric injury, he is not satisfied that any of the acts, failures or omissions alleged ... against the teachers of the College and the others in the DEECD, constituted a breach of that duty of care.

However, at no stage did His Honour consider the collective actions of the various employees of the State as a whole. His methodology was to consider the actions of each of the various actors individually and to form a view on whether each of them had breached their duty. His Honour should have considered the actions of the employees of the State together as a whole rather than individually.

57 This ground was not developed in oral argument. It is difficult to understand what is meant by it. The footnote to the submission refers to the fact that the trial judge took each of the persons about whose conduct the applicant complained, and examined that complaint and reached conclusions about it.

58 Under the general law, the respondent has no duty to the applicant. However, s 23 of the Crown Proceedings Act 1958 provides:

(1) Subject to this Part -

(a) the Crown shall be liable in respect of any contract made on its behalf in the same manner as a subject is liable in respect of his contracts; and

(b) the Crown shall be liable for the torts of any servant or agent of the Crown or independent contractor employed by the Crown as nearly as possible in the same manner as a subject is liable for the torts of his servant or agent or of an independent contractor employed by him.

59 The present proceeding was in negligence. In order to make the respondent liable, it was necessary for the applicant to demonstrate 'the torts of any servant or agent of the Crown'.[29] That is what she attempted to do. That is what the trial judge decided. It is not the case that s 23, by itself, requires the torts of various servants or agents to be aggregated. It is possible that a party may contend that, when the conduct of two or more servants or agents is aggregated, each has breached his or her duty to the plaintiff for which the respondent will be vicariously liable under s 23. But, that is not the way the applicant ran her case at trial. And, her written submissions do not take the matter any further.

60 At first instance, the applicant's case at first instance was a claim for damages in respect of causes of action in negligence and breach of statutory duty. Neither at first instance nor in this Court did the applicant seek to pursue a claim for breach of contract.

61 In Stubbe v Jensen,[30] this Court held that it was an implied term of an employment contract between an employee of the State of Victoria and the State of Victoria that the State of Victoria owed its employee a duty to take reasonable care not to expose the employee to the unnecessary risk of injury.[31] No such claim, however, was pursued by the applicant in the present proceeding. Accordingly, it was not necessary for the trial judge to consider whether the respondent was liable to the applicant for a breach of any contractual duty owed by the respondent. The case in this Court (and, putting aside the claims for breach of statutory duty, the case at first instance) involved whether the applicant could establish that any employee or agent of the respondent, for whom the respondent was vicariously liable, breached a duty of care owed by such person to the applicant. This, the applicant has failed to do. Further, if the applicant had pursued a claim for breach of a contractual duty owed to her by the respondent, then the judge's findings (which we have found to contain no error) would, if any contractual claim had been made by the applicant, have mandated the dismissal of her claim, in any event, for the reasons given by the judge.

62 On 5 December 2016, the applicant filed an application for leave to adduce fresh evidence on the hearing of the application for leave to appeal.

63 The fresh evidence application was supported by affidavits sworn by her on 5 December 2016 and 13 December 2016. In those affidavits, the applicant said that she wished to rely upon seven further documents. During the course of the hearing of the appeal, only two further documents were pressed:

(a) a WorkCover return to work plan signed by Mr Newland on 20 December 2007 (the WorkCover return to work plan). The applicant said that this document affected the credibility of Mr Newland and undermined a finding by the trial judge that Mr Newland did not know that the applicant was to return to work on 29 January 2008; and

(b) a signed letter from Katherine Henderson dated 27 August 2008 (the Henderson letter). The applicant said that this document affected the weight attributed to 'Exhibit 22' which the trial judge did not rely upon because it was in draft.[32]

64 The principles governing the exercise by this Court of its jurisdiction to admit fresh evidence were not in dispute. In Giles v Jeffrey,[33] the Court said:

In order to succeed in her application for leave to adduce fresh evidence, the applicant had to establish the following:

(a) By the exercise of reasonable diligence the evidence could not have been discovered in time to be used in the hearing of the [earlier] proceeding.

(b) It is reasonably clear that if the evidence had been available at the hearing of the [earlier] proceeding, and had been adduced, an opposite result would have been produced.

(c) The evidence proposed to be adduced is reasonably credible.[34]

65 In Commonwealth Bank of Australia v Quade,[35] the Court said:

In cases where all that is involved is the discovery by the unsuccessful party of fresh evidence, Orr v Holmes and Greater Wollongong Corporation v Cowan establish that the reconciliation of 'the demands of justice' and the 'policy' that there be an end to litigation at least prima facie (or 'generally') dictate that the successful party should be deprived of the verdict in his favour only if the unsuccessful party persuades the appellate court that there was no lack of reasonable diligence on his part and that it is reasonably clear that the fresh evidence would have produced an opposite verdict. Such a stringent rule in that ordinary class of case is supported by considerations of both justice and public interest. Considerations of justice support it in that it would be unfair to the successful party if he were to be deprived of a verdict obtained after a trial on the merits and be subjected to the expense, inconvenience and uncertainty of a further trial merely because some relevant evidence had, without fault on his part, been unavailable to the unsuccessful party at the time of the trial. Considerations of public interest support it in that it is desirable in the public interest that there be finality in litigation in other than the truly exceptional case. If all that was necessary to procure the setting aside of a regularly obtained verdict was that the unsuccessful party show that fresh evidence which might have affected the outcome of the trial has become available after the trial, the verdicts of the courts would be of a provisional character only, being subject to the discovery of further relevant evidence.[36]

66 In opposition to the application to adduce further evidence, the respondent filed an affidavit of Benjamin Harry House sworn 23 January 2017 (the House affidavit). In that affidavit, Mr House deposed that the respondent made discovery and filed three affidavits of documents as follows:

(a) an affidavit of Ms Julie Myers dated 23 December 2014 which identified 237 documents together with two further documents over which privilege was claimed;

(b) a further affidavit of Ms Myers dated 15 April 2015 which identified five documents together with five further documents which were no longer in the possession, custody or power of the respondent; and

(c) a supplementary further affidavit of Ms Myers dated 26 August 2015 which identified 17 further documents.

Mr House says that, in total, the respondent made discovery of 259 documents which were still in its possession, custody or power, and over which no claim for privilege was made. In his affidavit, Mr House deposed that the WorkCover return to work was one of the respondent's documents. He says that his firm had not previously been in possession of the document and that, so far as he was aware, there was no deliberate attempt to withhold the document from the applicant.

67 The applicant did not contend that the respondent or its solicitors had deliberately failed to discover the WorkCover return to work plan.

68 The WorkCover return to work plan does not satisfy the tests for fresh evidence.[37]

69 In determining whether the document satisfies the 'fresh evidence' test, it is necessary to identify what part it could have played had it been tendered at trial. The applicant said that it was relevant to the credibility of Mr Newland. In making findings about two critical issues, the trial judge had to decide whether he believed the evidence of the applicant or Mr Newland. The first issue related to the existence of any duty of care before the meeting on 22 October 2007. In particular, had the applicant told Mr Newland that she was subject to stress at a meeting at Jonathan's Café and in several telephone conversations? The second issue related to the conduct of Mr Newland in the discussion that took place between him and the applicant on 22 October 2007 after the second interview and whether his conduct involved a breach of that duty? In the case of both, the trial judge said that he preferred the evidence of Mr Newland to that of the applicant.

70 The applicant contended that the WorkCover return to work plan undermined the credibility of Mr Newland. She said that the document 'refutes' the factual finding of the trial judge that Mr Newland was surprised by her return to work in January 2008.[38]

71 It should be said at the outset that the question whether Mr Newland was 'surprised' by the applicant's return to work on 29 January 2008 was truly collateral to the main findings that the trial judge had to make.

72 In giving his reasons as to the applicant's credibility, the trial judge said:

Of most significance were the events which surrounded her return to work on the first day of the 2008 school year, 29 January. It is clear from a number of emails passing between Ms Pateras and Ms Morrison, the personnel manager at the College that the motivation for her return to work was to ensure that she would obtain maximum benefit from her various leave entitlements. This is confirmed in the history given to Dr Milone in the entry in his clinical notes of 26 January 2008. Yet, in evidence, Ms Pateras insisted her return to work on 29 January 2008 was a genuine attempt to return. In my view, it was clear that Ms Pateras had no real intention of making an effective return to work but was rather concerned about her leave entitlements. In evidence, she said she was treated poorly on the day, her return was not recognised by Mr Newland, her name was not on the staff board despite notifying the College the Friday before, and her presence not acknowledged. Further, she said she was unable to continue after that day because of a panic attack. I do not accept any of this evidence given the circumstances surrounding this return to work.[39]

73 That said, it is not at all clear that the existence of the WorkCover return to work plan would have affected either (a) this evidence; or (b) the trial judge's finding.

74 First, while it is true that the WorkCover return to work plan was signed by Mr Newland, it is in qualified terms. It states: (a) against the entry 'Return to Work details' that the expected return date is '29.01.08 but not confirmed'; and (b) against the entry 'Proposed return to work process an estimated return to work date'; 'To be advised by attending doctor(s)'.

75 Second, at trial, a different return to work plan document was in evidence.[40] The different return to work plan was, in substance, identical to the WorkCover return to work plan. It contemplated a return to work 'Term 1 - 2008'.

76 Third, the trial judge found that the applicant visited her general practitioner on 26 January 2008 and that the applicant wanted to return to work on 29 January 2008 (which was the next working day) 'so as not to lose holiday pay'.[41]

77 Fourth, in cross-examination, Mr Newland said that, in January 2008, it was his belief that the applicant was unfit for work and on sick leave. The applicant did not put to Mr Newland the WorkCover return to work plan that had been tendered in evidence and suggest to him that it contradicted his belief that she was on sick leave.[42]

78 Fifth, other witnesses gave evidence that they had not expected the applicant to return to work on 29 January 2008.[43]

79 In the circumstances, it is clear that, had the WorkCover return to work plan been available at the hearing, and tendered in evidence, no opposite result would have been produced.

80 The Henderson letter is a letter signed by Ms Henderson to Mr Newland dated 27 August 2008. Again, it is not entirely clear what use the applicant says should be made of this document and how it would have changed the result below.

81 As the applicant submitted, Ms Henderson said that an external investigation had been carried out by Julie Baker-Smith & Associates ('JBSA') which had made certain findings in relation to the dispute between the applicant and Mr Newland. In particular, she says that the letter showed that JBSA had found that:

(a) the selection panel had determined that the position LT1 should be offered to the applicant;

(b) in a discussion after the meeting of the selection panel, Mr Newland sought to dissuade the applicant from taking the position;

(c) Mr Newland sought to dissuade the applicant from accepting the position by prevaricating over her acceptance and asking her to reconsider her acceptance in the interests of the school;

(d) Mr Newland had intended to act in the interests of the school; and

(e) the applicant should be offered the position.

82 During evidence, it appears that the applicant attempted to tender a draft of the Henderson letter but that the trial judge had said that, as it was a draft, he proposed to give it little weight.

(a) a companion letter from Ms Henderson to the applicant which made the same points as those contained in the Henderson letter;[44]

(b) a relevantly identical draft letter;[45] and

(c) a letter from Mr Newland to the applicant dated 2 September 2008 which he explained to her was 'a consequence of' his receiving the Henderson letter.[46]

84 In our opinion, the substance of the Henderson letter was in evidence. Moreover, its contents - which describe the result of the applicant's complaint - were not in dispute. Further, it was written some ten months after the incident that it investigated and, to the extent that it made findings on matters that were the subject of the proceedings, it was (as he pointed out to the applicant) for the trial judge to make his own findings on the issues that were before the Court and to do so on the evidence adduced before him.[47]

85 The application to adduce the WorkCover return to work plan and the Henderson letter fails.

86 The applicant contended that she was denied procedural fairness due to the failure of the trial judge to comply with his duty to assist an unrepresented litigant. On the hearing of the appeal, counsel advanced two particulars of breach:

(a) in ruling that part of her witness statement was inadmissible, the trial judge told the applicant that she could repair the resultant omission in her evidence by cross-examining a witness for the respondent when he gave his evidence. While the respondent had given notice to the applicant that it was to call that witness and she had not given notice that she required him to attend for cross-examination,[48] the trial judge should have advised her that she could none the less require his attendance for cross-examination;

(b) the trial judge had prematurely ended the cross-examination by the applicant of Mr Newland and deprived her of the opportunity to complete it.

87 The transcript reveals that in her witness statement the applicant had included the following:

I believe that Mr Newland's refusal to accept my acceptance was influenced in part by Mr Mooney.

I believe Mr Mooney was alluding to my relationship with Mr Peter Stone.

Having explained to the applicant that she could not herself adduce evidence of her belief about what influenced someone else, a discussion ensued. During the discussion, the applicant said that Mr Mooney was to be a witness for the respondent. The trial judge said to her 'you can cross-examine him' on what he might have said.

88 At the hearing of the appeal, counsel contended that the trial judge had breached the rules of procedural fairness in not advising the applicant that, notwithstanding that she had not given notice requiring Mr Mooney to attend for cross-examination, she should now do so. Counsel also submitted that, later in the trial, when the respondent tendered a statement of Mr Mooney, the judge should have reminded the applicant that she should cross-examine Mr Mooney.

89 However, there is no evidence that the trial judge was aware that Mr Mooney was not required to attend for cross-examination.[49] The applicant did not tell the judge that he had been delivered from the obligation to attend.[50] Further, it is difficult to see what evidence could have been adduced from him on the subject. The issue was whether what Mr Newland had done in the discussion after the second interview on 22 October 2007 involved a breach of any duty of care to the applicant.[51] Moreover, evidence that he was influenced to do what he did by any other person could not have been relevant.[52] Finally, if it had been relevant, the inquiry would have had to have been directed at Mr Newland, not Mr Mooney.

90 The applicant also complained that she had been unable to finish her crossexamination of Mr Newland. She said that this was a matter of great significance given that so much of the judgment turned on matters of credibility in which the trial judge preferred the evidence of Mr Newland to hers.[53] In particular, she pointed to the fact that her cross-examination by the respondent had gone over six days whereas her cross-examination of Mr Newland had been restricted.[54]

91 At the hearing of the appeal, this Court asked counsel to explain what matters the applicant had been prevented from putting in cross-examination. Counsel said: (a) all of the events after 22 October 2007; (b) whether Mr Newland had been influenced by Mr Mooney; and (c) whether Mr Newland had seen the signs of her mental distress.

92 However, it does not appear that the termination of her cross-examination of Mr Newland caused the applicant any injustice. Part of the applicant's case was that, after she had gone on sick leave, Mr Newland breached his duty to the applicant by not getting her back to work. However, the transcript shows that she crossexamined him on (a) her return to work; and (b) events after 22 October 2007.

Application for extension of time to apply for leave to appeal

93 The judgment below was pronounced on 1 December 2015. Pursuant to the Supreme Court (General Civil Procedure) Rules 2015 ('the Rules'), an application for leave to appeal shall be filed within 28 days. Pursuant to r 64.08(1), the Court has power to extend time for the filing of an application for leave to appeal.

94 On 15 June 2016, the applicant applied for an extension of time pursuant to r 64.08(1). Her application was supported by an affidavit sworn 8 June 2016.

95 In her application for an extension of time, the applicant advanced several grounds in support of her application. In summary, she contended that there was merit in her substantive application.[55]

96 The applicant swore an affidavit on 8 June 2016 in support of her application for an extension of time. During the trial, she appeared without legal representation. In that affidavit, she said that she was badly affected by the death of a close friend on 15 November 2015 and that she broke down at her funeral on 23 November 2015. She said that she suffered a 'mental relapse' after the trial and that she was not able to read the decision below until about 7 April 2016. She has exhibited a list of her appointments with medical practitioners and the medication that she has been taking.

97 The applicant deposed that, once she read the decision, she concluded that there were several errors in the reasoning and that the respondent had not fulfilled its discovery obligations. In her opinion, this was an example that the respondent had intentionally misled the Court and had acted dishonestly.

98 By mid-April 2016, she had informed the solicitors for the respondent that she was proposing to appeal and, thereafter, suffered from problems with her computer which slowed down the preparation of the necessary documents. The applicant foreshadowed an application to adduce further evidence.

99 The respondent opposed the application for an extension of time. It said that the application had not been addressed in the written case. It also said that it had a vested right to the judgment below[56] and that the substantive application was itself without merit.[57]

100 Pursuant to r 64.08 of the Rules, the Court has a discretion to extend the time for filing an application for leave to appeal. As Kyrou JA observed in Gippsreal Ltd v Kenny:[58]

As with the exercise of any other discretion by the Court, the Court must seek to give effect to the overarching purpose in s 7 of the [Civil Procedure Act 2010], namely to 'facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute'. The factors that are relevant to the exercise of the discretion under r 64.08 include the length of the delay, the reasons for the delay, the prospects of the application for leave to appeal succeeding and the extent of any prejudice to a respondent.

101 Given our conclusion that there is no merit in the substantive application and that it should be dismissed, the question whether the applicant should be given an extension of time has become effectively moot. However, as a matter of formality, we will grant leave to the applicant to extend the time for her to bring her application for leave to appeal.

(a) grant the application to extend the time in which the applicant may bring her application for leave to appeal from the order of the County Court dated 1 December 2015 (Judge O'Neill) until 15 June 2016;

(b) refuse the application to adduce fresh evidence on the hearing of the present application; and

(c) dismiss the application for leave to appeal.

[1] Pateras v State of Victoria [2015] VCC 1710 ('Reasons') (Judge O'Neill).

[2] [2005] HCA 15; (2005) 222 CLR 44 ('Koehler').

[3] On the hearing of the appeal, the parties agreed that the question whether the duty had been engaged by the 22 October 2007 was in dispute between them. Assuming that the duty had been engaged, the parties were in dispute as to whether it had been breached on or soon after 22 October 2007 during the discussion between the applicant and the school principal. The respondent agreed that, after the 22 October 2007, the duty had been engaged. However, the parties were in dispute as to whether it had been breached in the way in which the complaints of the applicant had been investigated and her return to work handled.

[5] The present significance of this letter is the 'fresh evidence' application now brought by the applicant. The applicant has applied to adduce in evidence, on the hearing of the appeal, a copy of a signed letter from Ms Henderson to Mr Newland dated 27 August 2008. As will be shown below, the contents of this letter were not in controversy at trial. Exhibit 47 is a copy of a letter from Ms Henderson to the applicant dated 26 August 2008 which is in substantially identical terms to the letter to Mr Newland. Exhibit ZZ is a draft of the letter to Mr Newland.

[6] Callinan J delivered a concurring judgment.

[7] Koehler [2005] HCA 15; (2002) 222 CLR 44, 57 [34]-[35] (citations omitted).

[10] [2014] VSCA 62 (Redlich, Tate and Santamaria JJA).

[11] Ibid [208]. The quotation is from the joint judgment of McHugh, Gummow, Hayne and Heydon JJ in Koehler [2005] HCA 15; (2002) 222 CLR 44, 59 [41].

[12] [2007] QCA 366.

[14] Ibid [41]-[43]. The enumeration of Keane JA's observations is taken from Taylor v Haileybury [2013] VSC 58, [116] (Beach J).

[15] As indicated below, the respondent's vicarious liability depends upon whether its servants or agents breached their duties.

[16] Koehler [2005] HCA 15; (2005) 222 CLR 44, 57 [35].

[17] The substance of this paragraph and each quotation is taken from the applicant's amended witness statement dated 4 November 2015. See exhibit A.

[18] The applicant's own marriage had ended some time previously and she had commenced a relationship with Mr Peter Stone, one of the vice-principals at the school.

[19] Reasons [270]-[280] (citations omitted).

[20] The reference is to Reasons [280], [281].

[21] The reference is to Reasons [270].

[22] The reference is to Reasons [281].

[23] The trial judge said at Reasons [270] that the following principles are of relevance in this case:

The question is then whether the kind of psychiatric harm subsequently suffered is reasonably foreseeable in the circumstances which existed at the time.

The test also requires consideration of whether it was reasonably foreseeable that the conduct complained of was likely to result in the type of mental anguish that could give rise to a recognised psychiatric injury.

[24] In Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia [1987] HCA 27; (1987) 72 ALR 1, 6, Mason CJ, Wilson and Dawson JJ said: 'Of course, reasons for judgment are not to be read as if they were a statute requiring to be construed. They must be read in context'. See also Veljanovska v Socobell OEM Pty Ltd [2005] VSCA 227, [15] (Ashley JA with whom Callaway and Buchanan JJA agreed).

[29] Hall v Whatmore [1961] VicRp 35; [1961] VR 225, 226 (Herring CJ and Dean J), 229 (Hudson J).

[30] [1997] 2 VR 439 ('Stubbe').

[31] See also, Commonwealth Bank of Australia v Barker [2014] HCA 32; (2014) 253 CLR 169, 190 [30] (French CJ, Bell and Keane JJ).

[33] [2016] VSCA 314 (Santamaria and Kyrou JJA and Elliott AJA).

[34] Ibid [207]. The Court referred to Refaat v Barry [2015] VSCA 218, [76]-[77]; Clark v Stingel [2007] VSCA 292 [25], citing Orr v Holmes [1948] HCA 16; (1948) 76 CLR 632, 635-6; Commonwealth Bank of Australia v Quade (1991) 178 CLR 134, 141-2.

[37] An exhibit tendered in evidence showed that the creation of WorkCover return to work plan is a requirement of the Accident Compensation Act 1985.

[39] Reasons [215]. At Reasons [233], the trial judge says:

Ms Pateras then returned to work on 29 January 2008 in circumstances which I have already described. I am satisfied the principal, if not the sole reason, was to preserve her leave entitlements. She attended a staff meeting, but complains of not being on the roster nor welcomed back by Mr Newland. I am satisfied Mr Newland and other teachers did not know she was about to arrive and I accept the roster was produced a week earlier. She left the school premises because she claims to have had a panic attack, although this is not referred to in Dr Milone's notes.

[40] The different return to work plan is found within exhibit BB dated 21 December 2007. See Reasons [167].

[42] At trial, the applicant was aware of the significance that she now attaches to the WorkCover return to work plan. During her cross-examination, she referred to 'a return to work plan that clearly indicates I was - my expected due date was Term 1 which was 29 January, there is a return to work plan to that effect'.

[45] Exhibit ZZ. The trial judge permitted the applicant to file the draft letter in final addresses.

[47] When a draft of the Henderson letter was sought to be put into evidence, the trial judge made a comment that:

it is only a draft isn't it? Is there any evidence that this was formalised and sent to Mr Newland? ... The difficulty with it, Ms Pateras, is that I don't know whether it was ever formalised. I mean ... probably something along these lines must have been sent to Mr Newland at the outcome of the second investigation ... But I don't know whether this was the document that was sent.

However, there seems to be no evidence to suggest that, when he came to make his decision, he did not accept, as true, the contents of the draft letter.

[48] At an interlocutory hearing held 12 June 2015, the parties were directed to exchange and file witness statements. Another direction required the parties to serve notices advising which parties they required to attend for cross-examination. That direction also provided that if no notice to attend had been given, the party could rely on the evidence in the witness statement without the need for the witness to attend. On 28 August 2015, the respondent served its witness statements on the applicant. That list included 'Mr Mooney dated 26 August 2015'. On 24 September 2015, the applicant gave notice of the witnesses that she require attend for the purposes of cross-examination. Her list made no reference to Mr Mooney.

[49] The applicant did not explain why she did not call Mr Mooney. He had been her referee for the position at the heart of the proceedings.

[50] The transcript of the hearing below shows that the applicant was fully aware of the effect of the programming directions made 12 June 2015. The applicant herself referred to it. It was discussed in her presence. During the respondent's opening, reference was made to Mr Mooney's evidence. When Mr Mooney's statement was tendered, the applicant said that she had no objection to its being placed in evidence.

[51] The transcript shows that the applicant thoroughly cross-examined Mr Newland about what he did on 22 October 2007 and subsequently in January 2008. In that cross-examination she made several references to the conduct of Mr Mooney.

[52] The transcript reveals that the applicant was able to cross-examine Mr Newland on what he did in the discussion on 22 October 2007.

[53] Counsel for the applicant referred to those parts of the judgment below where the trial judge preferred evidence given by persons other than the applicant: Reasons [225], [229], [233], [234], [235], [244], [246].

[54] The cross-examination of Mr Newland commenced at 11:23 am on 17 November 2015. One witness was interposed. It completed at 3:00 pm on 18 November 2015. Before lunch on 18 November 2015, the judge warned the applicant that her cross-examination would not be permitted to proceed beyond '1 o'clock'. Immediately before the luncheon adjournment on 18 November 2015, the trial judge asked the applicant how much longer her cross-examination of Mr Newland could be expected to go. Her answer was 'possibly an hour'. At 12:40 pm, the trial judge adjourned the hearing until 2:00 pm. The applicant was not present at 2:00 pm. The cross-examination recommenced at 2:14 pm. At 3:00 pm, the applicant said that she had 'five minutes to go'. The judge appears not to have permitted any further cross-examination. At the appeal, her counsel said that she only cross-examined Mr Newland for three and a half hours.

[55] The applicant referred to the following:

(1) The merit of the application for other than leave to appeal is supported by compelling reasons that the leave to appeal has a real prospect of success and should be allowed.

(2) The obligation of the respondent to act as a model litigant.

(3) Breach of overarching obligations of the Civil Procedures Act 2010 by the respondent.

(4) Breach of County Court Civil Procedures Rules 2008.

(5) Pre-Judicial [sic] orders that refused the applicant leave to subpoena documents from the following entities:

(b) the Victorian Human rights and Equal Opportunities Commission;

(c) Victoria Civil and Administrative Claims Tribunal;

(d) Accident Compensation and Conciliation services.

(6) Judgment for the defendant was a miscarriage of justice as was compounded by

(a) breach of overarching obligations of the Civil Procedures Act 2010 by the respondent;

(b) breach of County Court Civil Procedures Rules 2008 and Pre-Judicial [sic] orders that refused the applicant leave to subpoena documents;

(7) No prejudice will result to the respondent because of the inordinate delay.

[56] The respondent referred to Vilenius v Heinegar (1962) 36 ALJR 200, 201.

[57] The respondent referred to Trkulja v Dobrijevic [2015] VSCA 281; Deak-Fabrikant v Grech [2016] VSCA 118; Giza v Waybecca Pty Ltd [2016] VSCA 78.

[58] [2016] VSCA 65, [21]; see also Deak-Fabrikant v Grech [2016] VSCA 118, [34] (Priest and Beach JJA).