Rossi v Qantas Airways Limited [2023] FCA 1008 | Case summary

Rossi v Qantas Airways Limited [2023] FCA 1008 | Case summary | Zoe

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Table of Contents PART A - PRELIMINARY [1] Introduction [1] Amended originating application [11] Statutory framework [12] Brief chronology [18] PART B - PRINCIPLES [38] Preliminary - some examples [38] Principles - standard of mental capacity [53] Role of expert and lay evidence [66] PART C - INTRODUCTION TO ISSUES AND WITNESSES [68] Summary of respective cases [68] The approach to capacity [70] The witnesses [75] Conduct of trial [84] PART D - EVENTS [85] Formal claims against Qantas culminating in writ [86] MBC engaged to act [94] Psychiatric assessments [103] Change in the psychiatric assessments [107] Other events prior to the settlement conference [126] Letter informing Ms Rossi about the settlement conference [126] Ms Rossi's attempts to contact Mr McCristal [128] Appointment with Ms Allan 21 October 2008 [131] Appointment with Dr Singleton 22 October 2008 [132] 27 October 2008 pre-conference meeting (Monday) [133] 27 October 2008 settlement conference at Sparke Helmore [146] After the conference and leaving the building [162] 28 October 2008 (Tuesday) [167] 29 October 2008 settlement meeting continued (Wednesday) [174] After the conclusion of the settlement meeting [198] Ms Rossi's diary notes [207] The Deed [209] PART E - EVALUATING CERTAIN EVIDENCE [216] Ms Rossi [216] Mr McCristal [223] Mr Hutchinson [231] Ms Firth's affidavit [232] Limitation rulings [233] PART F - FINDINGS ABOUT EVENTS [237] Standard of proof [237] Certain findings [239] PART G - THE EXPERT EVIDENCE [293] Principles [293] Dr Singleton [298] Dr Singleton's lay and expert evidence [302] Evaluation of Dr Singleton's evidence [312] Ms Allan [318] Ms Allan's lay evidence [323] Ms Allan's expert evidence [342] Dr Parmegiani [356] Dr Lee [377] PART H - CONCLUSION [394] Orders [416]

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Introduction 1 On 29 October 2008 the applicant, Sara Rossi, signed a settlement deed (Deed), purportedly bringing to an end a workers' compensation claim that she made against the respondent, Qantas Airways Limited, in 2006. Ms Rossi now contends that she did not have the mental capacity to enter into the Deed. Accordingly, she seeks to have the Deed set aside, in the hope that she can pursue a claim for leave to bring an application under the Australian Human Rights Commission Act 1986 (Cth) against Qantas alleging unlawful discrimination. 2 The claims Ms Rossi seeks to pursue against Qantas are based on events which allegedly occurred between 2001 and 2003. Ms Rossi alleges that Qantas discriminated against her on the ground of sex and engaged in sexually harassing conduct, and discriminated against her on the ground of disability. She claims that such conduct caused her psychological injuries and led her to accept a voluntary redundancy in 2003. As a result of the injuries allegedly suffered at Qantas, Ms Rossi claims that she has been unable to work since 2003, save for a brief period. 3 Under the Deed, Ms Rossi agreed to accept $75,000 in full and final settlement of any claims relating to her employment with Qantas. After signing the Deed, Ms Rossi refused the settlement monies. Ms Rossi accepts that her proposed claim against Qantas can only proceed if the Court finds that the Deed is a nullity. 4 The proceeding in this Court began in 2019 when Ms Rossi made a claim for leave to bring the proposed application against Qantas under the Australian Human Rights Commission Act. The application to set aside the Deed forms part of the same proceeding. 5 On 31 July 2020 Gleeson J ordered that the issue of whether the Deed should be set aside should be determined before any question of leave to proceed against Qantas under the Australian Human Rights Commission Act: Rossi v Qantas Airways Limited (No 2) [2020] FCA 1080. More particularly, Gleeson J ordered that a separate determination was to address the orders sought in 1(a), (b) and (c) of the originating application. The relief by way of proposed order 1(a) relied on duress. That ground was subsequently abandoned by Ms Rossi by amendment to the pleading. The trial of the separate determination was allocated to me, and proceeded with respect to the relief sought in orders 1(b) and (c) only. The remaining proposed orders are reproduced below. 6 It is important to bear in mind what was not the subject of this trial. Ms Rossi does not allege duress, undue influence, or unconscionable conduct with respect to entry into the Deed. She no longer pursues claims against her legal representatives at the time. Rather, in issue is a relatively narrow question as to whether Ms Rossi was a 'handicapped person' under the relevant Victorian County Court rules when she signed the Deed. It was accepted that this Court has accrued jurisdiction to deal with this issue, having regard to the broader subject matter of the underlying proceeding: Treasury Wine Estates Vinters Limited v Pearson [2019] FCAFC 21; (2019) 268 FCR 12. 7 The significance of a decision of this nature must be recognised, even in circumstances where Ms Rossi herself seeks the relevant declaration. As Ms Rossi submitted, capacity to settle is crucial to the integrity of the legal system. As was observed by Bell J in Goddard Elliott (A Firm) v Fritsch [2012] VSC 87: [560] … Depriving a person of the right to settle proceedings represents an interference with their civil rights and their personal autonomy in the conduct of litigation. It is likewise an invasion of that right and that autonomy to fail to recognise when a party is mentally ill and therefore lacks the capacity to make proper litigious decisions on their own behalf. 8 Having regard to the principles, and acknowledging the significance of the decision, the issue for determination in this case distils to whether on 29 October 2008 Ms Rossi lacked the capacity to understand the general nature and effect of the Deed, if it had been explained to her. It is not in issue that Ms Rossi bears the burden of proof in this regard. 9 For the reasons set out below, I am not satisfied that Ms Rossi has discharged this onus, and accordingly her application for relief is refused. 10 I acknowledge that for many years Ms Rossi has sought to pursue what she considers to be a great injustice she has suffered at the hands of Qantas. I acknowledge the significance of the proceeding as a whole to Ms Rossi personally, and that as a consequence of this decision her complaints may not be further investigated. The question of capacity in this case has not been an easy one, particularly as the events happened many years ago. But in the end it has been reached after the application of long-standing principles as to assessing the capacity of a person with mental health issues.

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Statutory framework 12 The County Court Rules were made under the County Court's power in s 78(1) of the County Court Act. Although s 78 is referred to in the relief sought, it is only relevant as the source of the power vested in a majority of judges to make the County Court Rules. 13 When Ms Rossi signed the Deed on 29 October 2008, the relevant provision of the County Court Rules was O 15. It was not suggested that other provisions or rules were relevant to the dispute. Order 15 relevantly provided: PERSON UNDER DISABILITY 15.01 Definitions In this Order - handicapped person means a person who is incapable by reason of injury, disease, senility, illness or physical or mental infirmity of managing his affairs in relation to the proceeding; person under disability means minor or handicapped person. 15.02 Litigation guardian of person under disability (1) Except where otherwise provided by or under any Act, a person under disability shall commence or defend a proceeding by his litigation guardian. (2) Except where otherwise provided by these Rules, anything in a proceeding that is required or permitted by the Rules to be done by a party shall or may, if the party is a person under disability, be done by his litigation guardian. (3) A litigation guardian of a person under disability shall act by a solicitor. 15.03 Appointment of litigation guardian … (3) Where after a proceeding is commenced a party to the proceeding becomes a handicapped person, the Court shall appoint a litigation guardian of that party. … 15.08 Compromise of claim by a person under disability (1) Where in a proceeding a claim is made by or on behalf of or against a person under disability, no compromise, payment of money or acceptance of an offer of compromise under Order 26, whenever entered into or made, shall so far as it relates to that claim be valid without the approval of the Court. … (4) On the application, evidence shall be given of the date of the compromise, payment or acceptance and the date of birth of the person under disability, and the dates shall be stated in any order approving the compromise, payment or acceptance. (5) Where the acceptance of an offer of compromise is approved, the person under disability shall be taken to have made or accepted the offer at the time of approval. 14 The County Court Rules were revoked on 22 February 2009 by r 1.03(2) of the County Court Civil Procedure Rules 2008 (Vic), which were themselves revoked on 19 November 2018 by r 1.03(2) of the County Court Civil Procedural Rules 2018 (Vic). However, the rules relevant to this matter are those in force at the time Ms Rossi signed the Deed, that is, the County Court Rules. 15 The proper reading of the text from these provisions is relevantly to the effect that if a person is handicapped, then no claim brought by them can validly be compromised without the approval of the court. 16 As is apparent, Ms Rossi alleges that she was a handicapped person at the relevant time. There was no court approval for entry into the Deed. It follows, on Ms Rossi's case, that the Deed was ineffective in compromising her underlying claim against Qantas and (subject to any other limitations) the claim therefore persists. 17 Qantas, on the other hand, asserts that the claims against it by Ms Rossi were resolved and brought to an end by the Deed, and that Ms Rossi has not met the onus of establishing that the Deed should be set aside on the basis of her alleged incapacity.

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Brief chronology 18 This section contains a brief chronology of relevant events, expressed in a relatively uncontentious manner so that the principles may be read in context. Particular events are addressed in more detail in later sections. 19 Ms Rossi commenced employment with Qantas as a flight attendant in 1988, becoming a customer service manager in 2000. She alleges that she sustained a workplace injury between 2001 and 2003. 20 Towards the end of 2002, Ms Rossi commenced receiving treatment from a psychologist, Amanda Allan. Ms Allan gave evidence in this proceeding. 21 It was not until around mid-2006 that Ms Rossi commenced her workers' compensation claim against Qantas. She attended a conciliation session but the claim was not resolved. 22 In around February 2007 Ms Rossi started seeing a new general practitioner, Dr Gillian Singleton. Dr Singleton also gave evidence in this proceeding. 23 In around April 2007 or May 2007 Ms Rossi was referred to Maurice Blackburn Cashburn (MBC) with respect to her workers' compensation claim. She signed a 'no win, no charge' retainer. From September 2007 John McCristal of MBC acted for Ms Rossi. 24 In preparation for trial, Mr McCristal arranged for Ms Rossi to be assessed by a psychiatrist, Dr John Gill. Ms Rossi attended an appointment with Dr Gill and he produced a report dated 27 November 2007. He diagnosed chronic adjustment disorder with mixed anxiety and depressed mood, and accepted that such psychiatric injury had been caused by her employment. 25 On 24 April 2008 Mr McCristal telephoned Ms Rossi about historical medical records he had received, and expressed concern that she had not previously provided him or Dr Gill with her full medical history, which included treatment for depression before the time of the impugned conduct of Qantas. 26 During 2008 Ms Rossi was also assessed by psychiatrists retained by Qantas, Dr Ian Jackson and Dr Paul Kornan. 27 In around September 2008 Mr Rossi attended a second appointment with Dr Gill. He produced supplementary reports. By this time Dr Gill had received additional information about Ms Rossi's earlier medical history and it caused him to change his earlier assessment of her condition and reduce the extent to which he considered it may have been caused by her employment with Qantas. 28 On 9 October 2008 Mr McCristal sent a letter to Ms Rossi notifying her that a settlement conference with Qantas' lawyers, Sparke Helmore, was scheduled for 27 October 2008. 29 The three days of 27 to 29 October 2008 are key in this matter. 30 On 27 October 2008 Ms Rossi met with Mr McCristal and a barrister retained on her behalf, Mr Brent Hutchinson, for a pre-conference discussion. 31 Together they then attended the scheduled settlement conference, which after some discussion was adjourned to 29 October 2008. Ms Rossi spoke to Ms Allan that evening. 32 On 28 October 2008 Ms Rossi went to see Dr Singleton and had phone calls with both Mr McCristal and Mr Hutchinson. 33 On 29 October 2008 the settlement conference resumed at Sparke Helmore's office, and an agreement was purportedly reached. Three documents were produced at this time: a letter from Mr McCristal to Ms Rossi headed 'Your Claim'; a document headed 'Terms of Settlement'; and the Deed. Ms Rossi apparently signed the letter and the Deed. The Terms of Settlement were signed by counsel. 34 After the conference Ms Rossi called Dr Singleton who considered that Ms Rossi was highly distressed. In the ensuing days Ms Rossi apparently remained distressed, and during November 2008 and December 2008 sought to discuss the settlement with Mr McCristal. 35 Ms Rossi alleges from around that time until late 2018 (that is, for some 10 years), she tried to find lawyers to assist her. She says it was not until November 2018 that she found Harmer Workplace Lawyers who agreed to act. 36 On 21 December 2018 a complaint was lodged with the Australian Human Rights Commission, but was terminated because it was lodged more than 12 months after the alleged acts. 37 On 20 September 2019 this action was commenced.

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Preliminary - some examples 38 The issue of capacity may arise in a number of contexts that inform the test that might be applied. 39 In a transactional environment, the issue may arise after documentation has been completed, and a person alleges a signatory did not have capacity to sign. Examples include Gibbons v Wright (1954) CLR 423; and Hanna v Raoul [2018] NSWCA 201. 40 In Gibbons v Wright, the appellant and her two sisters-in-law became owners of land as joint tenants. Subsequently the sisters executed documents converting the joint tenancy into a tenancy in common. After the sisters died, the appellant claimed that these documents were ineffective because the sisters lacked mental capacity. If this were the case the appellant would become sole owner. The court said that the mental capacity required may be described as the capacity to understand the nature of the transaction, when it is explained. It was necessary to show that the sisters were capable of understanding, if the matter had been explained to them, that by executing the mortgages they would be altering the character of their interest in the properties, so that instead of the last survivor becoming entitled to the whole, each of them would be entitled to a one-third share: at 438-439. 41 In Hanna v Raoul, the respondent signed a deed and transfer that had the effect that the appellant would discharge the respondent's mortgage and the respondent would transfer the property to the appellant, subject to a life estate in favour of the respondent. A problem arose after the transfer was completed when the house in which the respondent had continued to live burned down. The Court of Appeal found that it was probable that the respondent, who was elderly and frail, understood the broad operation of the general purport of the transaction encompassed in the deed and the transfer, albeit that he did not understand the legal implications of the creation of a life estate or the conferral of a remained interest. The evidence supported a conclusion that the respondent understood what he wanted to achieve by having someone else pay off his mortgage, and that it included the transfer of title. 42 The question of capacity frequently arises in the context of testamentary capacity, and there is an established body of law in that regard: Banks v Goodfellow (1870) LR 5 QB 549 at 565; Bull v Fulton (1942) 66 CLR 295 at 341-343; and Re Griffith (decd); Easter v Griffith (1995) 217 ALR 284 at 295. The test for testamentary capacity is not necessarily useful by way of analogy in this case. 43 In a litigation context, the question of capacity may arise during proceedings where a person seeks to have a litigation representative appointed, and asserts that they do not have capacity to otherwise proceed. Examples include Vishniakov v Lay [2019] VSC 403; (2019) 58 VR 375; Slaveski v State of Victoria [2009] VSC 596; (2009) 25 VR 160; and Secretary, Department of Health v Southern Cross Directories Pty Ltd [2021] FCA 1592. 44 In Vishniakov the court allowed a plaintiff's application for the appointment of a litigation guardian. The case is cited frequently for Derham AsJ's useful collection of the relevant principles (at [30]). Slaveski similarly concerned the appointment of a litigation guardian, but in the context of a plaintiff who was self-represented. These are the only decisions that the parties were able to uncover that concerned the same provision of the County Court Rules that is applicable in this case, and the assistance offered by these authorities in this case is limited (because both involved a current consideration by the court of the appointment of a litigation guardian; they were not concerned with a particular transaction or a retrospective assessment). 45 In Secretary, Department of Health, the respondent failed to meet the onus of establishing that his capacity was impaired. The Court found that the medical evidence did not rise to a level that supported a finding of an absence of legal capacity, and took into account that communications with the Court evinced an understanding of the nature of the proceedings. 46 Re Erdogan's Application; Erdogan v Ekici [2012] VSC 256; (2012) 36 VR 579 provides an example where a plaintiff satisfied the court that, although in the exercise of its parens patriae jurisdiction the court had ordered that the plaintiff's settlement proceeds be paid into court, the court should in the exercise of that same jurisdiction determine that the plaintiff was no longer a person under disability and was entitled to the return of his property. 47 The question of capacity may also arise in the context of limitation periods and whether a disability might suspend the operation of the relevant limitation period. This was explored by the Court of Appeal in Guthrie v Spence [2009] NSWCA 369; (2009) 78 NSWLR 225. The plaintiff sought to pursue proceedings for assault and negligence alleged to have occurred at the hands of a school teacher when he was a child. The primary judge found that the plaintiff established that he was under a disability that impeded his affairs, being in context those affairs relevant to starting litigation to enforce his causes of action, such that the limitation period was suspended until a certain date, despite exhibiting capacity in other senses. The decision was upheld on appeal. 48 As in the present case, capacity may arise in the context of litigation where a person claims that a compromise of litigation should not have proceeded because of their mental state. Examples include Masterman-Lister v Brutton & Co [2003] 1 WLR 1511; and Goddard Elliott. 49 In Masterman-Lister, the plaintiff compromised litigation for damages for personal injuries in 1987, after receiving advice from counsel and solicitors. Six years later he issued proceedings against his former solicitors for professional negligence relating to the proceedings, and served the writ a further three years later. The plaintiff relevantly sought to reopen the settlement of his earlier claim on the basis that it had never received the approval of the court, and such approval was required under the rules of court because he was a 'patient' within the meaning of the relevant mental health legislation and was incapable by reason of mental disorder of managing and administering his property and affairs. The appeal court upheld the finding of the trial judge on a preliminary issue that the plaintiff had capacity when the action was compromised. The appeal court addressed and dismissed grounds of appeal that included formulating and applying the wrong test for capacity. 50 At the time of Masterman-Lister, there had been no other reported English decision directly concerned with the capacity to litigate and compromise, so the court looked to how capacity was considered in other contexts (at [11]-[14]). This decision continues to provide important guidance and has been applied in this jurisdiction. 51 In Goddard Elliott, the issue of capacity arose in the context of a negligence claim against the respondent's solicitors. The court found that the respondent did not have mental capacity at the time he gave instructions to his solicitors at the door of the court to settle family court proceedings. The proceedings involved complex commercial and taxation issues. The proceedings were settled for a grossly inadequate amount (at [751]). The respondent was known to have mental health problems during the course of the proceedings and it was known to his lawyers that his condition impaired his ability to give instructions (at [719], [723]). The respondent succeeded in his claim against his solicitors in negligence (amongst other claims) for taking and acting on his instructions when he did not have mental capacity, which his solicitors should have known. 52 I have selected the above cases because many are referred to in the discussion of the principles below or in the instructions to the experts. These cases reveal the need to take particular care to identify the nature of the capacity that might be required in any particular context, and the requirement that the court assess capacity, not bound by medical evidence, but having regard also to a range of lay evidence about events over a period of time that might be relevant to the task.

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Principles - standard of mental capacity 53 As described by the High Court in Gibbons v Wright (at 437-438), capacity is to be tested by reference to the particular transaction or conduct in which the person proposes to engage: The law does not prescribe any fixed standard of sanity as requisite for the validity of all transactions. It requires, in relation to each particular matter or piece of business transacted, that each party shall have such soundness of mind as to be capable of understanding the general nature of what he is doing by his participation. … one test of the requisite capacity …[is] to consider whether the person concerned was capable of understanding what he did by executing the deed, when its general purport was explained to him. The principle … appears to us to be that the mental capacity required by the law in respect of any instrument is relative to the particular transaction which is being effected by means of the instrument, and may be described as the capacity to understand the nature of that transaction when it is explained. 54 Their Honours explained and applied that approach as follows (at 438-439): Ordinarily the nature of the transaction means in this connection the broad operation, the 'general purport' of the instrument; but in some cases it may mean the effect of a wider transaction which the instrument is a means of carrying out: Manches v Trimborn (1946) 174 LT 344, at p 345. In the present case, it was necessary, we think, that the two sisters should have been capable of understanding, if the matter had been explained to them, that by executing the mortgages and the memorandum of transfer they would be altering the character of their interests in the properties concerned, so that instead of the last survivor of the three joint tenants becoming entitled to the whole, each of them would be entitled to a one-third share which would pass to her estate if she still owned it at her death. (emphasis added) 55 In Masterman-Lister the test was described as issue-specific (at [27]). The standard, as described by Kennedy LJ, is 'related to the individual plaintiff and [their] immediate problem' (at [19]). Chadwick LJ held (at [58]): The authorities are unanimous in support of two broad propositions. First, that the mental capacity required by the law is capacity in relation to the transaction which is to be effected. Second, that what is required is the capacity to understand the nature of that transaction when it is explained. 56 In Dalle-Molle v Manos [2004] SASC 102; (2004) 88 SASR 193, Debelle J provided useful guidance in the broader context of the capacity to give sufficient instructions to take, defend or compromise litigation. Debelle J observed (at [22]-[27]): (1) the question whether a person has the capacity to give sufficient instructions in a litigious matter does not turn on whether or not the person has the requisite mental capacity to make some other legally effective decision; (2) evidence of the capacity to make other decisions which have legal consequences and to conduct ordinary day to day affairs would be relevant but must be weighed with other evidence as adduced; (3) even if the condition suffered by the person was one which rendered him or her vulnerable to exploitation or at risk of making rash or irresponsible decisions, it did not necessarily follow that he or she was unable to give sufficient instructions, but these matters must be considered with other relevant evidence; (4) whether the person has the capacity to give sufficient instructions must be examined against the facts and subject matter of the particular litigation and the issues involved in that litigation. Accordingly, in a complex matter it may be necessary for careful advice and explanation to be given and for there to be time for consideration by the litigant; (5) the level of understanding of legal proceedings involves an ability to understand the nature of the litigation, its purpose, its possible outcomes, and the risks in costs which is of course but one of the possible outcomes; and (6) the qualification as to 'sufficient' instructions in the relevant rule meant instructions of a quantity, extent or scope adequate for the purpose or object of those instructions, signifying that a person is able, once an appropriate explanation has been given, to understand the essential elements of the action and is able then to decide whether to proceed with the litigation or, if it is a question to agreeing to a compromise of the proceedings, to decide whether or not to compromise. 57 His Honour's observations were referred to by Ward J in A v N [2012] NSWSC 354 at [392]-[397]. In A v N the question, insofar as capacity was concerned, was whether the person referred to as 'E', who suffered from dementia, had capacity to enter into a deed which set out the basis on which the parties agreed to compromise court proceedings which were then on foot. The deed was entered into following a mediation conference attended by E. There was evidence that Mr Moore (counsel) had gone through the deed with E: at [429]. Her Honour relevantly concluded: [445] I accept that the critical question is whether E had capacity to enter into the transactions provided for in the March Deed (not whether he had general capacity or testamentary capacity at that time). That capacity is measured by whether E would have understood the nature and effect of the transactions then being contemplated had such an explanation been given to him. By analogy with the authorities in relation to testamentary capacity, the question as to capacity is not whether he in fact understood (though that would be of relevance when considering the allegations of undue influence or unconscionable conduct and the like) or whether he acted in a rational manner in making the decisions that he did, but whether he was capable of understanding had an appropriate explanation been given. 58 In Hobhouse v Macarthur-Onslow [2016] NSWSC 1831, Robb J acknowledged that there may be a question as to what the High Court in Gibbons v Wright meant by the use of the expressions 'when its general purport was explained to him' and 'if the matter had been explained to them'. As Robb J continued: [423] …The use of the word 'when' in the first of these expressions tends to suggest that an explanation is required, while the use of the word 'if' in the latter tends to leave open the possibility that the reference to an explanation is hypothetical. … [427] There is nothing in the reports of Ball v Mannin or Gibbons v Wright, or the authorities referred to by the Justices at 438, that suggest that there was any evidence in the particular case that any explanation had been given to the person whose capacity was in question, or that the outcome of the case in any way depended upon the adequacy of that explanation, and what effect it had on the understanding of the person. It would appear that the reference to an explanation in the expression 'capable of understanding, if the matter had been explained to them' was used to describe a level of capacity that must exist if an explanation had been given, not after it has in fact been given. Gibbons v Wright did not turn upon any explanation, let alone an extensive explanation, as suggested by Debelle J. 59 His Honour then observed the following with respect to A v N: [428] In A v N, notwithstanding that her Honour had earlier set out aspects of the judgment of Debelle J in Dalle-Molle, as noted above, and also considered the relevance of the evidence in the case of the explanation given to the person whose mental capacity was in question, at [429], Ward J stated her conclusion at [464] in the following terms: 'I am not satisfied that N has discharged the onus of proving on the balance of probabilities that he lacked the mental competence on that date to understand, if the transactions contemplated under the March Deed had been carefully explained to him, what was provided for under that deed and to enter into it' (emphasis added). See also Hanna v Raoul at [54], [161]. 60 A person's capacity can also change from time to time. In A v N it was not in issue that E had dementia but it fluctuated from time to time, such that on any particular day it was possible that he had capacity to understand the relevant transaction: at [22]. In Murphy v Doman [2003] NSWCA 249; (2003) 58 NSWLR 51 the appellant lacked capacity at one court hearing, and had been detained voluntarily and then involuntarily shortly afterwards with a psychotic episode, but capacity was not in issue some 10 or 12 days later. 61 In Goddard Elliott Bell J said: Mental capacity to settle proceedings [559] An important question in the present case is the client's capacity to give instructions and consider advice about settling the proceeding. Those issues were considered by Lord Denning MR in Kirby v Leather [[1965] 2 QB 367]. Applying the same issue-specific test as was approved in Masterman-Lister, his Lordship noted that the plaintiff could appreciate 'something of what had happened to him' (being involved in an accident). However, he 'was not capable of instructing a solicitor properly. He certainly was not capable of exercising any reasonable judgment upon a possible settlement' [at 384]. This passage was cited with approval in Masterman-Lister … as it has been in Australian cases [Owners of Strata Plan No 23007 (2006) 153 FCR 398, 413 [59]]. 62 As indicated, there are very few cases that address the particular words of O 15 of the County Court Rules. Applied in this case, those words are to the effect that Ms Rossi bears the burden of establishing that she was 'incapable by reason of mental infirmity of managing her affairs in relation to the proceeding'. 63 One of the relevant statutory tests in Erdogan was r 79.01 of the Supreme Court (General Procedure) Rules 2005 (Vic) which relevantly described a handicapped person as one who was 'incapable by reason of … mental infirmity of managing his or her affairs'. Similarly, in Secretary, Department of Health the Court applied r 9.61 of the Federal Court Rules 2011 (Cth), which when read with the definitions provision, provides that a 'person under a legal incapacity' means, relevantly, a 'mentally disabled person', who is 'a person who, because of mental disability or illness, is not capable of managing the person's own affairs in a proceeding'. In Dalle-Molle, the Court applied r 5 of the (then) Supreme Court Rules 1987 (SA), which was more specific than other provisions. It relevantly defined a 'person under disability' to mean 'any person, who by reason of physical weakness or intellectual or mental impairment or other condition whether temporary or permanent, is unable to give sufficient instructions to take, defend or compromise proceedings'. 64 The variation between these legislative provisions (and the position at common law) is to be carefully kept in mind, bearing in mind that the test for capacity is issue specific. For example, it is apparent that words such as 'managing affairs' will take their content from context. In Erdogan, it was said that 'affairs' takes its meaning from the language of the relevant provision, and refers to the beneficiary's property and their financial affairs. The beneficiary must demonstrate the capacity to make decisions in relation to his or her property and financial affairs (at [71]). And so '[t]o evaluate capacity, the nature of the responsibilities and transactions that management and administration of the beneficiary's property and moneys will entail, both at present and into the future, needs to be understood' (at [73]). Evaluating capacity in those circumstances might require consideration of many processes, information and risks (at [73]-[75]). The focus of the assessment of capacity in the context of the compromise of litigation must be narrower. In A v N, for example, although there was litigation on foot, Ward J noted that the question of capacity did not relate to the conduct of litigation, nor to testamentary capacity, but to whether E had the mental capacity to enter into the settlement deed, containing as it did various agreements as to the disposition of property interests (at [401]). 65 With that caution in mind, I consider that in this case the words 'managing her affairs in relation to the proceeding' as used in O 15 direct attention not to a broad range of issues and responsibilities, but to the compromise of Ms Rossi's proceeding against Qantas by the Deed, requiring a similar approach to that adopted in Gibbons v Wright and A v N. This is expanded upon at [70]-[74] below.

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Role of expert and lay evidence 66 Many of the cases that address mental capacity reinforce the principle that it is for the judge to decide, on the basis of the totality of the evidence, both lay and expert, whether the particular legal test for incapacity has been satisfied. It may be that lay evidence may be more compelling than retrospective expert medical evidence. Some of those cases are in the testamentary capacity category: Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 at [65]; Drivas v Jakopovic [2019] NSWCA 218; (2019) 100 NSWLR 505 at [52], [65]-[67]; Croft v Sanders [2019] NSWCA 303 at [86], [128]; and Starr v Miller [2021] NSWSC 426 at [462], [487]-[489] (upheld on appeal in Starr v Miller [2022] NSWCA 46). 67 The principles were also discussed more generally in Guthrie v Spence: [194] That Professor Quadrio's reports do not address the ultimate question posed by s 11(3)(b) is by no means fatal. The task of deciding whether a plaintiff was under a disability within the meaning of s 11(3)(b) is not the sort of matter that is capable of being solved by medical evidence alone, and there are limits on the assistance a judge can derive from medical evidence. In performing that task, medical evidence can sometimes be of great assistance in deciding whether a person has been suffering from an impairment of his or her mental condition. However, even that element of the definition could in some circumstances be proved by lay evidence, of enough instances of aberrant or inadequate behaviour. Medical evidence about the way in which a particular mental condition manifested itself could also be of assistance in concluding that it was by reason of an impairment of the plaintiff's mental condition that he or she was impeded in management of affairs in relation to the cause of action. Again, however, even that element could in some circumstances be proved by lay evidence, particularly when the impairment of mental condition was gross. [195] Even when medical evidence is available that bears upon whether a person had capacity, for some legal purpose, it is frequently expressed in terms appropriate for a medical diagnosis. Expert evidence can be very helpful in identifying the circumstances from which the diagnosed condition arises, and how it manifests itself in the patient's life. But the legal test for incapacity that is applicable in some particular litigious circumstance is usually not expressed in terms of medical diagnosis. It is for the judge to decide, on the basis of the totality of all the evidence, both lay and expert, whether the particular relevant legal test for incapacity has been satisfied. In Re Estate of Griffith (Dec'd); Easter v Griffith (1995) 217 ALR 284 at 295, Kirby P said, concerning testamentary incapacity: In judging the will propounded, and the challenge to it, the court must consider all of the facts proved which are relevant to the testamentary capacity of the testator. It must not be deflected into a consideration of medical evidence, still less of jargon, as to whether particular conditions such as 'delusion' or 'paranoia' have been established. Though these remarks were made in a dissenting judgment, they are a correct statement of principle. The same applies concerning s 11(3)(b). [196] The need for more than medical evidence to be taken into account in deciding whether incapacity has been established has been recognised, in litigious contexts outside that of limitations, in Kerr v Badran [2004] NSWSC 735 at [48]-[50]; Revie v Druitt [2005] NSWSC 902 at [34], Ric Developments Pty Ltd (t/as Lane Cove Poolmart) v Muir (2008) 71 NSWLR 593 at 598 [22], 603-4 [48] and Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 at [65]. [197] Deciding whether a particular plaintiff's ability to deal with the practical tasks of initiating litigation has been impeded is often a matter of inference rather than something proved by direct evidence. It could not be expected that the ordinary skill and training of a medical practitioner would inform them of the nuances of the test for disability that s 11(3)(b) poses, and here Professor Quadrio was given no help in trying to grasp them. Further, the question of whether a person has been substantially impeded in the management of his or her affairs in relation to the cause of action is a mixed question of fact and law, because it involves an evaluation of whether such impediments to management of affairs as have been shown to exist amount to the plaintiff being 'substantially impeded'. The evaluative element in making that decision is one for the judge alone. That is why Professor Quadrio's report by itself would not have been enough to establish the disability. [198] Where the ultimate issue for determination by a court involves a pure question of the existence of a medical condition, it may be appropriate and inevitable that an expert will address the ultimate issue directly. Where, as here, the ultimate issue involves other considerations, it will often be inappropriate to expect (or even invite) the expert to address that issue.

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The approach to capacity 70 As indicated, central to this case is whether Ms Rossi lacked the capacity to enter into the transaction provided for by the Deed, measured by whether she would have understood the nature and effect of the transactions then contemplated if an explanation had been given to her: Gibbons v Wright. 71 Ms Rossi was involved in court proceedings to seek a monetary amount by way of benefits. It is sufficient that she had capacity to understand something of her prospects of success, that any claims against Qantas would be resolved and come to an end if a settlement was achieved, that there would be no necessity for a trial, and that she would be paid the relevant sums (the terms of the Deed are addressed below at [209]-[215]). 72 In this case it has not been suggested by Ms Rossi that she did not have capacity to manage the proceedings as a whole. Nor was there any contemporaneous evidence of any suggestion from treating doctors, lawyers or others that the appointment of a litigation guardian should be considered at any stage. 73 I do not consider the narrow approach propounded by Ms Rossi properly reflects the approach the Court should take in these circumstances. I do not consider I am limited to considering evidence as to Ms Rossi's competence at the precise moment (or hour) of the signing of the Deed. Whilst any such evidence is important, the authorities indicate that the court frequently looks to the events surrounding the execution of a document in assessing whether capacity might be inferred: Scott v Scott [2012] NSWSC 1541 at [197]-[200]. 74 This was a compromise entered into during a three day period that had as its focus an attempt to mediate the dispute, a period involving Ms Rossi, her lawyers and lawyers for Qantas. The evidence of what occurred in those days is relevant to ascertaining and understanding the circumstances in which Ms Rossi signed the Deed, including ascertaining what she knew at the time about the prospects of her claim against Qantas and the purpose of the mediation conference. Having said that, it is the events of 29 October 2008 that are central to the retrospective assessment of Ms Rossi's capacity.

[19]

The witnesses 75 Ms Rossi gave evidence and was cross examined. She tendered six affidavits sworn between 12 February 2020 and 26 February 2021. 76 Evidence was also given on Ms Rossi's behalf by Dr Singleton and Ms Allan, both of whom treated her prior to and during 2008. 77 Dr Singleton provided affidavit evidence and a report and was cross examined. Qantas accepted that Dr Singleton was entitled to give expert evidence in her field as a general practitioner, but not as though it were expert psychiatric evidence. 78 Ms Allan provided affidavit evidence and a report and was cross examined. Ms Allan's notes were the subject of a subpoena and were produced, albeit that some were produced after she gave evidence. Ms Allan was called by Ms Rossi as an expert and lay witness. Qantas submitted that no weight should be given to her evidence (to the extent it purported to be expert evidence) on the basis that she was not suitably qualified to give the evidence she purported to give, and objected to it more generally on the basis that she lacked independence and her evidence was said to display collusion with Ms Rossi. 79 Ms Rossi also called Dr Enrico Parmegiani, a psychiatrist who provided a number of reports and was cross examined. Dr Parmegiani consulted with and assessed Ms Rossi for the purpose of this proceeding in October 2020. He was also provided with copies of her affidavits and medical reports. He was not Ms Rossi's treating psychiatrist. Qantas submitted that Dr Parmegiani's reports should be rejected or given no weight for a number of reasons, including because they were infected by his consultation with Ms Rossi in 2020 and strayed into the inadmissible territory of attempting to determine her subjective state of mind on 29 October 2008. 80 Qantas called two lay witnesses, Mr McCristal and Mr Hutchinson, both of whom were present at the settlement conferences on 27 October 2008 and 29 October 2008. Both provided affidavit evidence and were cross examined. 81 Qantas also relied on an affidavit of Talia Firth. Ms Firth is a lawyer from Ashurst who represents Qantas in this matter. The affidavit was the means by which a number of documents were to be tendered. As discussed further below, I have not admitted Ms Firth's affidavit in full, but I have admitted particular documents attached to the affidavit upon which there was cross examination or which were referred to in the written submissions. 82 Qantas called Dr Leonard Lee, a medico-legal psychiatrist. Dr Lee did not consult with Ms Rossi. He relied upon and commented on Ms Rossi's affidavits and documents provided to him in order to give what he described as a qualified written opinion dated 25 November 2020 as to her capacity. Ms Rossi objected to the admissibility of Dr Lee's opinion as a whole, submitting that it did not comply with this Court's legislative and practice note requirements; its format and presentation were confusing; and Dr Lee's reasoning process was opaque. 83 It will be necessary to return to these various objections to the evidence.

[23]

MBC engaged to act 94 Mr McCristal deposed that he first consulted with Ms Rossi in around July 2007 at the office of what became MBC. 95 Mr McCristal was admitted to practice in 1996 and had worked at the law firms Slater and Gordon and Maurice Blackburn. In 2001 he acquired the business of MBC and he was the principal solicitor of that firm at the time of the relevant events. He has specialised for many years in workplace stress claims. 96 Mr McCristal recalled from his initial meeting with Ms Rossi that she was articulate, and that based on her instructions he thought she had a reasonable workers' compensation claim against Qantas. 97 Mr McCristal referred to a letter of advice of 23 July 2007. The letter was not written by Mr McCristal, but by a colleague, Thierry Auffray (who had met with Ms Rossi before Mr McCristal assumed conduct of the matter). It was headed 'Your WorkCover Claim'. In it Mr Auffray confirmed Ms Rossi's instructions that she sustained a stress related injury in the course of her employment; that the self-insurer had rejected her claim for weekly payments and medical and like expenses; and that the matter did not resolve at conciliation. It then provided what appears to be standard form information about rights under the Accident Compensation Act. As to injuries occurring after 20 October 1999, it said that injuries may entitle the worker to: weekly payments for incapacity; reasonable medical and like expenses; lump sum compensation for non-economic loss upon medical assessment; and certain common law damages for negligence subject to there being a 'serious injury' (definition provided). 98 The 23 July 2007 letter concluded: We confirm our advice that you have reasonable prospects of success of challenging the self insurer's decision to reject your claim. We confirm your instructions to [issue] proceedings in the County Court challenging the insurer's decision to reject your claim for compensation. We confirm that we are prepared to take your case on a no win/no costs basis. This means that in the event that [you] are unsuccessful in obtaining compensation, we shall not render you an Account for our professional charges. We advise that it is our view that your prospects of bringing a Common Law claim or Negligence claim against your employer is risky and difficult. In this regard you would need to demonstrate before the Court that the employer should have [reasonably] foreseen that you would develop a psychological/psychiatric injury as a consequence of their actions. In the circumstances we do not believe that you have reasonable prospects of success of bringing a Common Law Claim or Negligence claim against your employer. If you disagree with our advice it will be necessary to obtain an opinion from a Barrister and the costs to obtain such an opinion will be between $750.00 and $1,000.00. 99 Ms Rossi also signed a standard 'no win - no charge' costs agreement letter dated 27 July 2007, signed by Mr McCristal on behalf of MBC. 100 As noted, on 23 July 2007 MBC served on Qantas a copy of an application for compensation on behalf of Ms Rossi, describing the injury as anxiety, depression and post-traumatic stress disorder. 101 On 6 September 2007 Mr McCristal wrote to Ms Rossi informing her that MBC had arranged a medical examination for 20 November 2007 with Dr John Gill, a forensic psychiatrist. 102 On the same date Mr McCristal sent a separate letter to Ms Rossi, which relevantly referred to a meeting with Ms Rossi that day and stated that: her medical records had been requested from her 'treaters'; her file had been requested from the insurer (presumably Qantas); once a claim was accepted they would advise Ms Rossi as to the prospects of obtaining a serious injury certificate and bringing a negligence claim; and a brief had been sent to a barrister to draw a statement of claim and issue proceedings. It also informed Ms Rossi that Qantas had arranged for her to be assessed by Dr Jackson in relation to her claim for permanent impairment benefits.

[25]

Change in the psychiatric assessments 107 Mr McCristal subsequently also obtained Dr Halliday's notes, and this caused him some concern, as they apparently referred to Ms Rossi's having a history of treatment by psychiatrists. 108 On 22 April 2008 Mr McCristal provided those notes to Dr Gill, asking Dr Gill to advise whether they changed his earlier opinion. 109 On 24 April 2008 Mr McCristal wrote to Dr Gill confirming a further appointment for Ms Rossi with him. 110 Also on 24 April 2008, Mr McCristal drafted a letter to Ms Rossi in which he set out his concerns about information within Dr Halliday's notes that referred to Ms Rossi being on anti-depressant medication since 1996, and being referred to a Dr George (a psychiatrist). Mr McCristal said he read from Dr George's notes that Ms Rossi had many sessions with him between 1996 and 2000. The notes also referred to other medical treatment over a five year period from a Dr McCafferty (also a psychiatrist). There was a report from Dr George amongst the materials. Mr McCristal expressed concern that Dr Gill would change his opinion if those materials were put to him, and that Dr Gill would say that the history provided by Ms Rossi to him was inaccurate, so calling into issue her credit. 111 The letter stated: We refer to this matter and advise that we are still waiting on the notes of Dr Altamat. We confirm that the Defendant has subpoenaed the notes of Dr Ann Halliday, which refer to you commencing anti depressant medication in July 1996. The notes also refer to you being referred to Dr George. Once the Defendant inspects the records, it is likely that they will subpoena the records of Dr George. Having read the notes of Dr George, I am extremely concerned, given the number of sessions that you had with him over the period 1996 to 2000. Once the material is put to Mr Gill it is likely that he will change his opinion, based on the past psychiatric history that you gave him. In this regard, he is likely to find that the history provided was not at all accurate. This may lead to your credit being called into issue in any future trial. We recommend that the matter be referred to the Medical Panel. The advantage of this tactic is that you will not be subjected to cross examination. In the event that you were subjected to cross examination, it would be likely that the Defendant's Barrister would ask you to explain to the Court why you provided such a totally inaccurate history to both the Defendant's Psychiatrist, Mr Jackson and to Mr Gill. We also note that there is a medical report from Dr John Isles in the clinical notes of Ann Halliday. Dr Isles refers to you having been treated for five years with Lawrence McCafferty. Please provide instructions in relation to this aspect of your treatment. A report from Dr George is also present in the clinical notes. It is likely that the Defendant will subpoena this material. 112 Whether this letter was sent to Ms Rossi is in issue. Two copies were before the Court, one of which has a line through it with the note 'don't send'. Mr McCristal did not claim to recall the particular circumstances as to why there were two copies of the letter. He said that he believes that the first copy of the letter was sent to Ms Rossi and the second was endorsed to avoid duplication. However, he said that if it were not sent, then that would have been because he had spoken to Ms Rossi over the phone about the contents of the letter and so there was no need to send it. 113 Ms Rossi accepted that there was a telephone conversation between her and Mr McCristal on 24 April 2008 about her historical records. Her affidavit evidence was to the effect that Mr McCristal said that he had received her records from Dr Halliday and that they contained various letters from practitioners she had consulted in the 1980s and 1990s, and that he said it appeared that she may not have given him her full history of depression. Ms Rossi said she told him that she didn't know what he was talking about, and that she had told Mr Auffray about her ex-partner and son and answered all questions put to her. Ms Rossi denied under cross examination that Mr McCristal raised with her during this conversation any concern he might have had about what Qantas might do with knowledge of Ms Rossi's past medical history. However, she knew he had concerns about whether she had been 'lying' about her medical history 'because he had raised them on the 24th'. 114 According to her notes, Ms Allan had a telephone conversation with Ms Rossi on 5 May 2008. Ms Allan's notes of that meeting include this extract: John (lawyer) - will still proceed - concerned about what Qantas will try to do (to Sara) - wondered why Sara has been depressed so often 115 Ms Rossi says she was diagnosed with cancer in mid-2008 and required major surgery. She said that she told Mr McCristal about this on or about 16 July 2008, and that it was the last time she spoke to him before the conference. 116 On about 17 July 2008 Ms Rossi was assessed by Dr Kornan at the request of Qantas, who produced two reports, dated 22 July 2008 and 30 July 2008. Dr Kornan's first report referred to a more detailed history of depression dating back to 1986, and the fact that Ms Rossi had been treated by psychiatrists over the course of a number of years. She had been treated by Dr George, for example, for three or four years in 1997 until the beginning of 2000, every five or six weeks. Dr Kornan's second report referred to additional medical evidence received, including Dr Jackson's report and records from Dr Stringer, and concluded that the more evidence he saw, the more tenuous it appeared to him that her current difficulties arose from Qantas. I interpolate to observe that the history set out in the reports is considerably more detailed than that that set out in Dr Gill's first report. 117 Mr McCristal also received a copy of the report prepared by Dr Jackson dated 25 June 2008. Dr Jackson stated, amongst other things, that he had received additional documentation which was consistent with a diagnosis of depressive illness that predated the events at Qantas, and which caused him to conclude that her psychiatric and psychological state predated her work with Qantas. This report was provided to Dr Gill on 22 August 2008, with a request that Dr Gill provide comments on it. 118 Dr Gill provided a supplementary report dated 15 September 2008. Ms Rossi apparently also attended an appointment with Dr Gill on that date. 119 Dr Gill received additional materials for the purpose of the supplementary report, including medical records and reports for the period 1991 to 2000 addressing Ms Rossi's mental health. These included clinical notes from Dr Halliday, a report from Dr Isles from 1991, a report from Dr McCafferty from 1993; various letters from Dr Stringer, including to Dr Halliday; a letter from Mr de Jong from 2000 and letters from Dr George from 1998 and 2000. I note that Dr Gill refers in a further report to each of Dr Isles, Dr McCafferty, Dr Stringer and Dr George as psychiatrists. Mr de Jong is described as a psychologist. Dr Gill also referred to Dr Jackson's report of 25 June 2008. 120 Dr Gill re-assessed his earlier opinion, stating the following in his supplementary report: … However, in contrast to my previous assessment, I must conclude that on the basis of the extensive documentation which I have seen subsequently and which outlines Ms Rossi's pre-existing psychiatric problems, it is not possible to attribute the bulk of her psychiatric symptoms to work-related factors at Qantas between 2001 and 2003. However, in view of the fact that there has been significant deterioration in her mental state since 2001, as evidenced by the documentation from Ms Allan, it is my view that the work-related factors have made a significant, albeit minor, contribution to the causation of her current Chronic Depressive Disorder. It should be noted that apparently Dr Jackson had not seen Ms Allan's documentation prior to preparing his report dated 25 June 2008. I estimate that the likely work-related component of Ms Rossi's psychiatric impairment is 5%. In terms of a broader percentage impairment assessment than that, using AMA 4th Edition criteria, and taking into consideration the diagnostic information, the degree of pain and suffering and the social, domestic and industrial affects of Ms Rossi's condition, I would consider that for industrial purposes she has a 12% level of impairment attributable to work-related stress injury. … The documentation which you have provided provides extensive evidence of psychiatric opinions from doctors who have treated Ms Rossi since the early 1990s for significant psychiatric difficulties. … Given that these problems have predated the stress she experienced at work from 2001, I must alter my opinion in relation to the causation of Ms Rossi's psychiatric condition. Although I have not altered my view that she remains severely impaired, I consider that the work-related contribution to her current condition is a relatively minor factor in the causation of her depressive illness, in comparison to the pre-existing factors … 121 On 18 September 2008 Mr McCristal provided a bundle of medical reports to Qantas' lawyers from the period 2003 to 2008. 122 On 10 October 2008 Dr Gill provided a second supplementary report specifically addressing Dr Jackson's June 2008 report. 123 Dr Gill wrote: Dr Jackson has provided a thorough analysis of the documentation and essentially he has concluded that Ms Rossi's psychiatric condition represents a depressive illness and personality features which pre-existed her work-related problems at Qantas and that her more recent presentation does not appear to differ significantly from her condition as depicted in the documentation prior to the alleged work-related stress. … In his review of the documentation, presumably Dr Jackson did not have available to him the material you have provided to me from Ms Rossi's psychologist Ms Amanda Allan. Ms Allan has indicated that she has known Ms Rossi for a period of five years, from August 2001 to October 2006. She considered that Ms Rossi was suffering 'ongoing severe depression and anxiety, with associated somatic and social dysfunctioning'. She noted that Ms Rossi's reports of having been alienated and victimised at her workplace. She concluded her report dated 30 October 2006 with the statement: 'It has been disturbing to witness the psychosocial demise of Sarah's functioning since first meeting her in late 2001, and I endorse every effort for her to receive acknowledgement for what she has suffered in the event of any absence of appropriate and respectful organisational support.' It would therefore appear from Ms Allan's documentation that Ms Rossi has experienced a significant deterioration in her mental state and her level of functioning since the onset of her work-related stressors. It is on the basis of the information provided by Ms Allan that I have formed the opinion that although for the reasons outlined by Dr Jackson, Ms Rossi's psychiatric condition is very largely attributable to pre-existing depressive illness and personality factors, there is a minor contribution attributable to the work-related stress factors between 2001 and 2003. I estimate that Ms Rossi has a psychiatric impairment of 5% attributable to work-related causal factors and 35% impairment attributable to non work-related factors. (original emphasis) 124 Whilst disclosure of some of the material in these extracts will no doubt be upsetting for Ms Rossi, I have included them for a number of reasons. First, as will become apparent, the reduction in Dr Gill's assessment of the percentage of impairment attributable to work place stress was critical to the advice given by Mr McCristal and Mr Hutchinson to Ms Rossi to settle her claim. Second, Ms Rossi knew about the reduction in that assessment prior to 29 October 2008, and both the reduction and the suggestion that she had initially failed to disclose her full history to Dr Gill caused her considerable concern. Third, (as I find below) Ms Rossi knew that Qantas might take advantage against her interests of the differences in her given history reflected in the reports. Fourth, Dr Parmegiani and Dr Lee were provided with copies of the reports of Dr Gill and Dr Jackson, amongst other materials. 125 For completeness I note that none of Dr Gill, Dr Jackson or Dr Kornan gave evidence and their reports were not admitted as evidence of the truth of the matters asserted or the truth of the matters about which opinions were expressed.

[30]

27 October 2008 pre-conference meeting (Monday) 133 Ms Rossi attended the scheduled pre-conference meeting with Mr McCristal and Mr Hutchinson at Mr Hutchinson's chambers. Ms Rossi said that it lasted for about 15 to 20 minutes because Mr McCristal was running late. Ms Rossi had by then received copies of the reports of Dr Jackson and Dr Kornan. 134 In her affidavit evidence, Ms Rossi said that at the meeting she was shown the medical reports of Dr Gill dated 15 September 2008 and 10 October 2008, which referred to the circumstances of her employment causing only 5% of her workplace in injury. She said that she did not understand how Dr Gill had changed his opinion. She told Mr McCristal that she did not agree with the report and asked him to explain further. Mr McCristal said that Dr Gill had changed his percentage rating due to her medical history. 135 Ms Rossi said under cross examination that she was not given Dr Gill's reports at the meeting and was only shown the back two pages where he had changed his percentage (this detail about seeing only the last two pages was not referred to in her six affidavits). She said she recalled that Mr McCristal read out part of the report relating to the percentage change and to the diagnosis, and that she believed the diagnosis was inaccurate and inconsistent with previous reports that she had received. 136 She said that when Mr McCristal read out Dr Gill's changed diagnoses she used words such as 'these reports are a lie, they are not accurate' and 'this cannot be right'. She said that she was 'shocked' by Dr Gill's change to his opinion, although she accepted that she had already known by then from Dr Jackson's report that she felt as though she was on trial regarding her medical history and life events. She also accepted that she knew by then that Dr Kornan was of the view that her pre-existing medical history was the cause of her medical conditions, and not Qantas, and said she had tried to talk about this with Mr McCristal. She said it was 'a surprise to me that they all hold the view that they do given that I have experienced what I've experienced'. 137 Ms Rossi said she described the new Dr Gill reports as being a 'lie' or words to that effect, because she wanted her lawyers to understand that she disagreed with Dr Gill's conclusions. 138 She accepted that at the meeting she talked about her concern that records from Louise Buchanan had not been provided to the psychiatrists. She expressed concern that the psychiatrists had gone to great lengths to disseminate 20 year old medical records which she believed to be irrelevant. She asked Mr McCristal to get the additional notes from Ms Buchanan that had been provided under subpoena (Ms Buchanan was a psychologist with whom Ms Rossi had consulted under the Qantas Employee Assistance Program (EAP)). 139 Ms Rossi said that Mr McCristal said at this meeting that he would not represent her in court if she did not pay him upfront. 140 In her fourth affidavit Ms Rossi said that she felt sick at the conference, that she was being cut off by Mr McCristal and Mr Hutchinson, that they were trying to shame her, and that her heart was racing and she felt her blood pressure increasing. She said she felt 'completely paralysed'. 141 Mr McCristal gave evidence about the meeting. He said he discussed with Ms Rossi that her prospects had changed following the receipt of Dr Gill's report. He recalled that he had discussed with Ms Rossi his belief that her claim did not have good prospects, and that Mr Hutchinson and he spent some time explaining the issues to her. He said he explained what to expect at the mediation to the effect that she would sit in another room while there would be some negotiation where the lawyers were more likely to speak frankly, and that if an offer was made they would come and speak to her. He said they were really only talking about compensation entitlements with Ms Rossi and what she might expect. He accepted it was possible that he did not give copies of Dr Gill's reports to Ms Rossi, noting that it was his firm's policy at the time not to provide them prior to payment. He denied Ms Rossi said the reports were not accurate, although he accepted it was possible she said something in objection to the reports. He doubted there was any reference to a deed or the like because at that stage he did not know whether there would be any settlement offer. 142 Mr McCristal denied he said words to the effect that he would not represent Ms Rossi if she did not pay upfront - he said it would have been inappropriate to do so in circumstances where no offer had been received at that point from Qantas, and that he would only ask for fees up front if he considered a client was rejecting a good offer that they should accept. 143 Mr McCristal said Ms Rossi did not seem to him to be upset either at or on the way to the meeting. He said that Ms Rossi appeared to him to participate freely in the meeting and did not appear to exhibit any signs of distress or being overwhelmed. He said that if he had observed such signs or thought that Ms Rossi lacked the capacity to receive or provide instructions, he would have cancelled the settlement conference, and advised Ms Rossi to attend her doctor. He said he had no concerns for Ms Rossi's wellbeing on the day. 144 Mr McCristal otherwise did not purport to have a clear recollection of the detail of the meeting. 145 Mr Hutchinson also gave evidence about the pre-conference meeting. He said his recollection of Ms Rossi's claim, without claiming to remember specific details, was that it was 'fraught and did not have good prospects'. He said Ms Rossi's expectations were 'very difficult to manage' and that she had 'great difficulty accepting views that did not accord with her own assessment of the merits of her case'. Mr Hutchinson says that he told Ms Rossi that she did not have a strong case, and that one of the reasons he believed this was so was because Ms Rossi's position was 'undermined by a doctor recording a psychiatric history that was different and more extensive than the one otherwise given by Ms Rossi'. Mr Hutchinson said he did not recall what was and was not explained to Ms Rossi in relation to how the informal settlement conference would be conducted.

[31]

27 October 2008 settlement conference at Sparke Helmore 146 After the pre-conference meeting, Ms Rossi, Mr McCristal and Mr Hutchinson attended the office of Sparke Helmore for the settlement conference. 147 Ms Rossi said in her affidavit evidence that she did not understand why she was at Sparke Helmore or what the point of the meeting was. Her evidence under cross examination on this point was quite emphatic: You're saying that, 'I did not understand why we were there and what the point of the meeting was'; do you see that?---Yes. Well - and you say that you were not told you were there to finalise your claim?---No, I wasn't. Well, you knew, didn't you, that you were attending Sparke Helmore for the purpose of an informal settlement conference, didn't you?---I had no idea what that entailed or what that meant. So - - - Well - - -?---So much so that before - the week before I rang and asked from the staff at Maurice Blackburn in Traralgon what the letter meant and I was told that they were not allowed to talk to me about my matter and that Mr McCristal was not available and nor was Mr Auffray. So I was in the dark … Well, you weren't in the dark. You knew that you were - that the purpose of the conference was to seek to try and reach agreement over the settlement of your claim?---I actually did not, and whilst I can understand from a - a lawyer and a legal perspective when you read that letter that you know what that means. I on that day and in that time did not. You're not seriously suggesting that you didn't understand, given the letter you received on 9 October, where you were told that the purpose of the conference was to try and reach agreement over the settlement of your claim, that you didn't know what that meant?---No, I did not. I believed that it was somehow associated with a letter I had received on and around 18 September, inferring that some time before the trial Mr McCristal was going to set-up a meeting with the barrister. I - I didn't know what the court processes were. I did not know what the claim processes were. You know though that it was a - you were going to be attending though a mediation, didn't you?---No. That's what you understood you were going to be attending?---I did not understand anything. Well, you knew that you were going to be attending a mediation or a conciliation?---No, I did not. 148 As indicated above, both Dr Singleton and Ms Allan on dates prior to 27 October 2008 referred in their notes to a mediation or conciliation. Ms Rossi was asked about this under cross examination: You knew that you were attending a conference where you had been told on 9 October that it was for the purpose of the resolution of your claim?---No. That is not what I understood about the letter. … You described to Dr Singleton that you understood that the - she has referred to the fact of you attending a conciliation hearing on the Monday?---Again, they are Dr Singleton's notes and her interpretation of anything that she is - they knew that I was going to be meeting with John McCristal, yes. And they knew that it was for the purpose of some form of resolution by conciliation or mediation?---I don't know. You would probably have to ask Dr Singleton ..... … Please .....?---I was going to say they were as in the dark as I was. 149 Returning to the circumstances of the meeting, Mr McCristal and Mr Hutchinson met in a separate room with lawyers for Qantas. Ms Rossi was in another room, and at certain points Mr McCristal and Mr Hutchinson came into the room and spoke to her. 150 Ms Rossi understood that she received an offer of $50,000 at the meeting, or 'something along the lines of $50,000', and that there would be no provision of ongoing medical expenses. She did not receive any documents that day. 151 In her affidavit evidence Ms Rossi said that Mr McCristal did not explain what a deed was, 'only that I need to sign documents'. Ms Rossi recalled that there was talk of 'signing off' but denied there was any mention of a deed. When pressed, she did not accept that it was likely that at the meeting they talked about the fact that it would be necessary to enter into a deed. She did not accept that it was likely that at the meeting they talked about the need to enter into a document which contained a provision that would prevent her from discussing her experiences at Qantas. 152 Ms Rossi said she did not have Dr Gill's reports open at the Sparke Helmore conference but said it was possible that on that day she 'looked over them'. She also recalled that Mr McCristal had said that she was unlikely to obtain a serious injury certificate due to her past medical history. 153 Ms Rossi claimed that she was struggling to articulate herself at the meeting and that at one point Mr McCristal said to Mr Hutchinson, 'Did you understand anything she just said?'. She said to them 'You are not listening to me'. In her affidavit evidence she quoted the following conversation: Mr McCristal: 'You have to sign everything today as I do not want to come back'. Ms Rossi: 'I am not able to do anything, I can't sign anything. I have to see my doctor' Mr McCristal: 'You need to come back on the 29 October 2008.' 154 However, under cross examination she disavowed that Mr McCristal had said 'You have to sign everything today as I do not want to come back' (presumably the evidence was revised because it did not fit with the absence of any documents at that meeting to be signed, and for completeness I note that the words 'I am not able to do anything, I can't sign anything' were subject to a s 136 Evidence Act 1995 (Cth) limitation, discussed further below). 155 Ms Rossi also said in her fourth affidavit that at one point Mr Hutchinson responded to her questions with the remark: 'well, that would be if you had cancer'. She said she asked Mr McCristal if Mr Hutchinson knew she had been treated for cancer. Ms Rossi described herself having a physical reaction following Mr Hutchinson's 'cancer' remark. She says she 'could barely speak due to the pressure of oesophageal spasms', which she says makes it difficult to speak without 'coughing uncontrollably' (these matters were not referred to in her earlier affidavits). She stated that she 'did not feel well', that she was 'very upset', that she felt 'overwhelmed', and that she needed to talk to someone about what was going on. She said she asked to see Ms Buchanan's notes. Ms Rossi also described asking Mr McCristal about one of the documents, only to see Mr Hutchinson kick him under the table (Ms Rossi revised this evidence during the hearing - see [187] below). 156 Ms Rossi accepted that there were a number of matters that she knew by the end of the meeting: Now, what you knew at the end of the meeting on the 27th was that there had been changes in Gill's reports from the 40 per cent - in terms of saying the extent to which Qantas was contributing to your injury changed from the 40 per cent in his previous reports to five per cent ... you knew that at the end of the meeting on the 27th?---Yes. There had also been discussion … there's a 12 per cent as well in terms of another percentage which was contained in his reports about likely pain and suffering. You know that at the end of 27 October?---I recall that - that this - yes. Yes, that is correct to some degree. And you knew that at the end of the meeting on the 27th that you were going to come back, not the following day but on the Wednesday?---At the end of the meeting on the 29th when I said I had to go see the doctor and they were going to do something about Louise Buchanan's notes, they said, 'You can come back on the 29th.' Yes. So on the 27th, you knew that, that you could come back in two days?---They said to come back on the 29th. … You knew that you had to consider whether you were going to accept or reject Qantas's offer at the end of the meeting on the 27th?---I - I can't give you an affirmative of what I was thinking at all. I was in a black hole. Well, you knew you had to decide whether to accept or not accept by Wednesday at the end of the meeting on the 27th?---No, I did not - I didn't know what I was thinking. I have - I have a black hole in this space of time. … So you have now no recall, is that right, of what happened after the meeting on the 27th and on the evening of the 27th?---Very little. Well, you spoke to Ms Allan, didn't you, that night?---Yes. And you spoke to her, didn't you, about a number of things including you spoke to her about the change in Dr Gill's assessment and made reference to the five per cent and the 12 per cent differences in Dr Gill's assessment?---I don't recall what I said to Ms Allan. 157 Mr McCristal did not disagree with some of Ms Rossi's evidence. However, he denied observing anything in her conduct that caused him to have concerns as to her understanding the events as they unfolded. Mr McCristal said in his affidavit evidence that he has experience dealing with clients with mental illness and his practice is that if he has any concerns about a client's capacity, he will have them assessed. He said he did not observe Ms Rossi being upset or appearing overwhelmed before or during the conferences on 27 October 2008, and he considered her to be clear and articulate, asking questions and being engaged. He said he does not recall anything in her presentation which caused him to believe she did not understand what was being discussed or that she had trouble communicating her views. He recalled that Mr Hutchinson spent some time explaining the issues to Ms Rossi and that she said words to the effect of 'I understand'. He denied that Ms Rossi said she needed to see a doctor and explained that had she done so, he would have cancelled or stopped the meeting and asked her to see a doctor if he had observed her being distressed, or if he had any concerns about her capacity (and I note that assuming that Ms Rossi said 'I understand', I do not take that to be evidence of itself that she did in fact understand). 158 Mr McCristal said it was his practice to draft a letter if any form of in principle settlement was reached for his client to sign, to confirm their instructions. Mr McCristal said it was possible that Ms Rossi had asked to see Ms Buchanan's notes. He denied knowledge of Ms Rossi's cancer diagnosis and said it was never discussed with him. He did not recall that Ms Rossi said anything during the meeting that was 'jumbled' or incoherent and denied that he said words to Mr Hutchinson to the effect of 'Did you understand anything she said?'. He described as absurd the suggestion that Mr Hutchinson kicked him under the table. He did not recall Ms Rossi coughing - he said he simply had no recollection of that. 159 Mr McCristal recalled that Qantas had proposed a settlement on the basis that Ms Rossi make a serious injury application seeking damages so that any settlement sum would constitute a damages sum and not compensation, so that tax liability would not attach to it. 160 Mr McCristal initially said that he was not sure why the conference needed to be reconvened on the 29 October 2008. Under cross examination he recalled that the settlement conference came to an end on 27 October 2008 because there was something in the nature of the settlement proposal that meant it was necessary to return, and he also accepted that it would give Ms Rossi more time to consider the offer that had been put at that stage. 161 Mr Hutchinson said his memory of this settlement conference at Sparke Helmore was vague. He was not asked if he made any comment about Ms Rossi and cancer. He had no recollection of Mr McCristal saying 'Did you understand anything she said?'. He recalled that Ms Rossi was upset on the Monday afternoon, but said that he was still able to understand her, even if she was not necessarily precise at all times. When asked whether he recalled Ms Rossi saying 'you're not listening to me', Mr Hutchinson said he could not recall but said 'I don't doubt that she might have' and that she 'may well have' made such a comment given the difference in views about her case between herself and her lawyers. Mr Hutchinson said he had no recollection of Mr McCristal saying he wanted Ms Rossi to sign anything on 27 October. He said it was possible that Ms Rossi asked to see her doctor, but that he had no recollection of it. He said that he was 'almost certain' that he did not kick Mr McCristal under the table as Ms Rossi described. He said he was 'as certain as I can be' of that, because he did not believe he had ever kicked a solicitor under a table. Mr Hutchinson said the utility of the settlement meeting on the 27 October had been exhausted by the end of the day, and that they 'seemed to be going round in circles' discussing at length the medical evidence and the settlement.

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28 October 2008 (Tuesday) 167 Ms Rossi said that the next day she was driving to an appointment with Dr Singleton when she received a phone call from Mr McCristal, during which she was told she had to 'sign off' on the settlement 'now'. Ms Rossi says she pulled over and had a conversation with Mr McCristal where he raised his voice and became 'verbally aggressive'. She says he told her that she would 'not get another chance' if she did not sign the settlement then, that the matter wouldn't go to trial unless she paid all his legal costs 'up front' and that she would incur further costs. Ms Rossi said she was upset and crying during the call, that she told Mr McCristal that she was on the way to the doctor and again told him that what he was doing was 'not right'. 168 Mr McCristal did not recall this call but denied ever raising his voice with a client and denied pressuring Ms Rossi to settle. He said it was possible there was a call. 169 In her affidavit evidence, Ms Rossi said she had an hour-long consultation with Dr Singleton where she struggled to explain what had happened, but was able to recall discussing her concern that the settlement amount would not cover her Medicare and Centrelink repayments. Ms Rossi said she told Dr Singleton she felt as if she could not comprehend what was happening and felt 'erased' and 'unvalidated'. Ms Rossi said that Dr Singleton recommended she raise these concerns with her lawyers. 170 Dr Singleton's clinical notes indicate: Long consultation, really struggling currently, attending conciliation hearing yesterday, has been offered 'pitiful' settlement -which barely covers the Centrelink payments she missed over the last few years with a clause to prevent her from discussing her experiences at Qantas with anyone and no provision for coverage of ongoing medical expenses as a result of her condition. Lawyer not wanting to continue to represent her. Feels that she has lost all hope. Counselled at length today. Increasing suicidal ideation denies fixed plans, discussed options would be agreeable to private hospital admission if final discussion between lawyers doesn't go well tomorrow. Validated her current emotional state and challenged her interpretation of events. Encouraged her to attempt to be mindful in light of her current stressors and try to acknowledge this does not mean that she has not experienced trauma and does not mean her life is not worthwhile. Has been speaking with Amanda regularly. Agrees to phone contact tomorrow. 171 Under cross examination, Dr Singleton said that she did not have a strong recollection of the consultation, although she had some recollection of Ms Rossi's level of distress, but accepted that the information in the note would have reflected what was relayed to her. 172 Ms Rossi said she spoke to Mr Hutchinson that evening, including about Ms Buchanan's notes. She said she received five pages of the Buchanan notes that evening. She said they were emailed to her by Mr McCristal and she went to an internet café in Melbourne to read them. She noticed that they were not in the correct order and included a date on which she did not recall having seen Ms Buchanan. 173 Mr Hutchinson said he remembered the phone conversation, and that he believed he called Ms Rossi in order to tell her that she ought to know 'what she wanted to do so she could give instructions'. Mr Hutchinson recalled telling her that she ought to ring Mr McCristal and tell him what she wanted to do and that he was unwilling to receive those instructions directly. Mr Hutchinson did not recall discussing Ms Buchanan's notes with Ms Rossi during the phone conversation. As to Ms Rossi's claim that he said words to the effect of 'this is not a conspiracy' and 'you are being paranoid', Mr Hutchinson conceded in his oral evidence that it was possible, but said that it would be unlikely that he would have accused her of paranoia. Mr Hutchinson added that the context of the conversation, as he saw it, was that Ms Rossi had very strong views about the merits of her case and had come to be quite concerned about the availability of the Buchanan notes, and in that context it was possible that he may have said words to the effect that it was not a conspiracy. He said he would describe Ms Rossi as 'fighting her corner'.

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29 October 2008 settlement meeting continued (Wednesday) 174 Ms Rossi said she unsuccessfully tried to contact Mr McCristal on the morning of the 29th. 175 Ms Rossi said that when she attended at Sparke Helmore's office on 29 October 2008 at around 1.00 pm or 2.00 pm, she understood that the purpose of the meeting was to see if her claim against Qantas could be resolved. 176 Ms Rossi said she met with Mr McCristal and Mr Hutchinson. She said something about the settlement amount being offered not covering Medicare and Centrelink. She said Mr McCristal and Mr Hutchinson left the room and came back and said the amount had been increased to $75,000 and that it was reflected in a document called 'Terms of Settlement'. 177 Ms Rossi said that Mr McCristal discussed with her the Your Claim letter. She received the three pages. She said that she asked him about negligence and he pointed out the part of the letter that addressed that. He said to her that the Deed would end the claim, and that she was to 'remember you cannot talk to anybody about this claim and cannot disparage Qantas'. 178 The Your Claim letter from Mr McCristal to Ms Rossi is dated 28 October 2008, which is likely when a draft was prepared, and reads as follows (with numbering as in the original): Your Claim We refer to your attendance on the writer of even date. We confirm your telephone instructions to Mr Hutchinson of counsel on 28 October and your confirmatory telephone instructions to Mr McCristal of our office this morning to settle your WorkCover claim against Qantas on the following terms: 5. That you be paid a minimum settlement sum of $50,000.00 plus your party-party legal costs. 6. The settlement finalises any claims against Qantas arising out of your employment. 7. The settlement sum includes medical expenses, weekly payments and any lump sum compensation arising from your employment. 8. You must keep the terms of the agreement confidential and it is a term of the agreement that you will not disparage Qantas. You will be responsible for payments to Centrelink for a period of 35 weeks. Based on your instructions that you were initially in receipt of $180 per week, we calculate a repayment to Centrelink of $6,241.00. You will also have to re-pay any amount owing to Medicare which relates to your claim. Based on your instructions we estimate amounts re-payable to Medicare are approximately $10,700. You will shortly receive a print out from Medicare of consultations which relate to your Qantas claim and consultations which do not relate to your Qantas claim. You must only tick those consultations which you are 100% sure only relate to your Qantas claim and these ticked items will be refunded to Medicare. We confirm our advice and the advice of counsel that there was a significant risk that you would fail all-together in your claim against Qantas. In this regard we confirm our advice that Mr John Gill after reviewing your pre injury medical history was of the opinion that the work related contribution to your current incapacity was minimal. We also confirm our advice and the advice of Mr Hutchinson that even if your claim succeeded the most you would be entitled to would be a period of payments for 104 weeks from the date of injury. During this period you would be precluded from receiving any payment for approximately the first 50 weeks by virtue of a voluntary departure package that you received at the date your employment was terminated. In addition, as you took money [from] your superannuation, you would be precluded for a further 22 weeks from receiving WorkCover benefits. The result of these reductions would mean that you would be entitled to 32 weeks at 75% of your base pre injury salary excluding overtime and allowances. Accordingly, even if your case went well you are likely to only receive 24 weeks of your base salary. We will attempt to negotiate a higher settlement for you. We confirm our advice that we do not believe you have any prospects of bringing a negligence claim against your employer. To do so you would need to demonstrate that you have a Serious Injury as defined under the Accident Compensation Act. A Serious Injury is defined as: 3. A level of whole person impairment under an American guide of 30% or more. 4. A psychological injury which has had a more [than] significant impact in the long term on your ability to earn income or your lifestyle. Based on the medical reports we hold on file you would have no prospects of demonstrating a serious injury due to the fact that our best medical evidence indicates that the work component of your injury is minimal in the context of your overall condition. We have agreed not to charge you solicitor client costs except for unrecoverable out of pocket expenses being for Mr Gill's review of the medical material & supplementary reports & counsels unrecoverable fees in the sum of $5,000.00. Please sign the attached copy letter to confirm your instructions and to confirm that you understand the nature of this [settlement]. If you have any queries, please do not hesitate to contact our office. 179 Ms Rossi accepted that Mr McCristal read out this document to her (and that he read out all three documents). 180 However, Ms Rossi in her affidavit evidence denied she gave instructions to settle for a minimum amount of $50,000. She stated that she told Mr McCristal the document did not reflect her instructions and that 'this is not right'. 181 She also denied that she was provided with the documents in the way that term might ordinarily be understood. For example, in her affidavit evidence Ms Rossi said that Mr McCristal 'handed her' a copy of the Your Claim letter. Under cross examination she modified that evidence: No, no. He gave it to you in the meeting, didn't he?---Physically? Handed it to you?---I don't - I don't recall he did, not this particular document. That's fine?---Yes. He presented it across the table, not for me to actually pick up and read through. He was referring to something on it and passed it - well, he was sitting very close to me. So in reference of he handed it to me, I look at where he's - and he's pointing to something on it where - where he's referring to, where I am - he's showing something. So you accept that he handed you a copy of your claim?---He passed it in my direction, so - yes. You - you could - you could assume that that is - is what he did, but he turned - - - He gave you … and you read it, didn't you?---No. There was something on it particular that he was pointing out to on it. I didn't read through this particular document. He read it out to me in its - in its content. Well. You read parts of it, though, didn't you?---Yes, a part - a part of it or parts. I don't know. And you had a copy of it because he handed it to you, didn't you?---You mean in addition to him having a copy … Your evidence says, Ms Rossi?---No. Your evidence says: He handed me a further document entitled Your Claim. So you had a copy of it when he handed it to you?---No, I didn't. So your evidence is wrong, is it, at [104]?---No. No, Ms Raper. It's not wrong. Your evidence is: Mr McCristal handed me a further document entitled Your Claim. … I'm not asking you about what's on the table. I'm asking you about him handing you a copy of your claim. He gave it to you, didn't he?---No, he did not, not in the way that - - - So that's wrong. So your evidence is wrong at [104], is it?---No. No, Ms Raper. My evidence is not wrong. It is not in the way you're suggesting. What is ambiguous or not right about him handing you a copy of your claim? That's your evidence?---But it - but it relates to something specific about him passing it to me. He was referring to something I had asked him about, and I can't tell you exactly what it was that I was asking in relation to this particular statement, and he was sitting next to me. I don't even think he let go of it. If he didn't let go of it, how could he have handed it to you?---Well, so that he puts - I will have to describe it to you physically. If he has handed something to it, you - something to you, you have it, not him?---I think two people can be holding the same document. So you were both holding the same document, were you?---It's possible. 182 Ms Rossi accepted that she got upset because Mr McCristal and Mr Hutchinson were telling her things that she did not agree with, and she was angry with them, or 'expressed some emotion'. She said she was concerned because she was told she would never get another lawyer this late. 183 When pressed under cross examination as to why she felt angry with Mr McCristal and Mr Hutchinson, the following exchange ensued: When you say they didn't listen to you, what you mean by that is that they didn't accept what you were telling them about your case and how good it was, in your view?---No. It isn't - it isn't about their opinion about whether my case was good or not, Ms Raper. And it was the case where you felt that your - you were angry at them because you thought they were giving up on you when you thought you had a good case against Qantas?---No. That's not the case. So you thought they did think you had a good case on the 29th?---That the position that I found myself when these three pages were presented to me were irrelevant to this concept of whether they did or didn't think I had a good case. You knew though, didn't you, on the 29th that Mr Hutchinson and Mr McCristal didn't think that you had a good case?---I knew that they had opinions about my situation, about my health records, about my life, whether I said something or didn't say something, and on prospects of what they thought about my case, and what they thought was irrelevant to why I was in this situation signing these documents. So you accept, then, am I right, in relation to my question, as opposed to your answer, which is that they - you knew on the 29th that they were of the belief that you didn't have a good case?---I suppose that the - that this - or that this had been imparted in some sentiment to me and I did not agree with them about the reasons why they didn't think I had a good case. And - - -?---The words, 'You don't have a good case,' I do not recall this language being used. But you accept that's what - you did understand that was the difference between you and Mr McCristal?---I understand that we had different opinions about the place where I worked, the origins of my injury, the experience I had, what caused my injury, so many things. 184 Ms Rossi gave similar evidence when asked about her affidavit evidence that Mr McCristal had handed her a document titled 'Terms of Settlement'. Logically, the Terms of Settlement reflected the revised offer that Qantas had proposed. She said: I didn't read - sit and hold the document and read it from beginning to end by myself. It was not unlike where I had asked him something he had possibly learned over with the document in hand so that it slightly reached me - maybe slightly reached him, 'This is what I'm referring to.' At no time did I take the document in my hands while they sat and I read it through by myself, not any of those three documents in that way. 185 Ms Rossi said at one point she moved closer to Mr McCristal to try and read the document and he brought it away towards his face so she could not see it. 186 She said in her affidavit evidence that Mr McCristal said to her that she 'needed to sign this deed today', and 'remember you cannot talk to anybody about this claim and you cannot disparage Qantas'. She said that she replied 'So I cannot even speak to my family about this?'. Ms Rossi continued: Mr McCristal then made handwritten changes which he did not show me and said 'You can discuss it with just your family'. Mr McCristal then made changes to the document titled 'Terms of Settlement' to reflect this and presented the documents (being the documents titled 'Your Claim' and the Deed) for me to sign. 187 Ms Rossi also indicated during her oral evidence that over the previous night she had re-evaluated her evidence about the alleged 'kick under the table', now placing it as occurring on 29 October 2008, rather than 27 October 2008, the date specified in two of her affidavits. 188 Ms Rossi said that while Mr McCristal read out parts of the Your Claim letter and the Terms of Settlement document she repeatedly thought that 'this does not make sense' and she noticed that the letter advised that she did not have a serious injury but the Terms of Settlement included agreement by Qantas to provide a certificate in that regard. She said this was contradictory. She said she could not articulate her feelings and she felt she was 'paralysed' and felt overwhelmed. She said she was fearful of the 'threats' Mr McCristal had made the day before and consumed by worry about the consequences if she did not sign. She said Mr McCristal passed her the Deed and the Your Claim letter and said 'these are your instructions to us and you need to sign this … these two documents go together'. 189 Ms Rossi accepted under cross examination that she had concerns when she signed the Deed about the consequences for her if she didn't sign it, based on what Mr McCristal had told her, and said that she understood that Mr McCristal was not going to represent her anymore. She accepted that she took into account threats such as legal fees of $6,000 per day that he had referred to. However, Ms Rossi denied that 'when she put pen to paper' she was thinking about these things. She said she decided to sign it because of those things 'in part' but could not enunciate other causes of concern, saying, 'I don't know. Just everything that had happened, everything that was going on'. 190 Ms Rossi said in her fourth affidavit that after she signed the Your Claim letter and the Deed, Mr Hutchinson left the room. She said her mind had gone blank (admitted only as evidence of how she felt). She said to Mr McCristal that she had to leave, and that whilst she appreciated him acting for her, 'this is not right'. 191 Mr McCristal said he recalled that he had instructions from Ms Rossi of a minimum amount for which she would settle, being $50,000. He also recalled telling her that the letter reflected her instructions at the time and she needed to sign it. He denied that she said that what was in the letter was not her instructions, or words to that effect. I interpolate to observe that the Your Claim letter was clearly drafted before the Qantas offer reflected in the Terms of Settlement was made or drafted: so much is apparent from the reference to $50,000 in the letter, the reference to Mr McCristal trying to negotiate a greater sum, and the absence of a reference to the damages mechanism for settlement that was included in the Terms of Settlement and the Deed. 192 Mr McCristal under cross examination said that he discussed the Terms of Settlement with Ms Rossi, which included the reference to Qantas issuing a serious injury certificate for pain and suffering. He said he explained to her why she would receive the certificate, being the favourable tax treatment she would benefit from following the settlement. He also recalled telling her that the settlement terms would be confidential. 193 Mr McCristal accepted it was possible that he may not have handed copies of the three documents to Ms Rossi at the time he discussed them with her, but he said that he went through them with her. 194 Mr McCristal agreed that he asked Ms Rossi to sign the Deed. He had no recollection of her standing up and saying she had to leave once it was signed. He perceived that she was happy with the agreement until sometime after the events. He did not observe her being distressed when they were discussing the offer from Qantas and he observed that she was clear and articulate when she signed the Deed, although he accepted that he no longer had a clear independent recollection of the meeting of 29 October 2008. 195 He was able to say, however, that he did not observe Ms Rossi exhibiting any behaviour during the conferences of 27 and 29 October 2008 that led him to question her ability to participate in them, and at no time during his initial meetings with her or throughout the settlement conferences did he have concerns about her capacity. 196 Mr Hutchinson did not have a clear recollection of the second conference. He recalled that there had been two settlement figures discussed (which he thought were $50,000 and $70,000), and his memory was that Ms Rossi gave instructions to settle for the higher amount. 197 In his affidavit evidence Mr Hutchinson recalled that he considered the settlement was excellent in the context of a claim where there were conflicting medical histories, and he recalled that both he and Mr McCristal advised her to accept it on the basis that it was in her interests. He said that he was satisfied based on his own observations that Ms Rossi understood the advice and freely agreed to the terms of settlement, although she was disappointed that it did not meet her own expectations. He also said under cross examination that she had a 'very clear view of her case'.

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After the conclusion of the settlement meeting 198 As had been anticipated during their Tuesday call, Ms Rossi and Dr Singleton spoke by phone at 5.33 pm on the Wednesday evening. Dr Singleton's notes state: Distressed - conciliation finalised today. Req admission to private psych unit unable to guarantee her safety. Will contact admissions tomorrow. Able to guarantee safety tonight. MBF no gaps 199 Based on Dr Singleton's notes, it appears that on 30 October 2008 (Thursday) she found a bed available at Delmont Hospital for the coming Saturday and informed Ms Rossi of this. 200 In response to a subpoena, a note from Ms Allan was produced dated 30 October 2008, but it says only 'To Daylesford. Phone conversation'. 201 On 1 November 2008 Ms Rossi attended Delmont Hospital but left soon after. She was not admitted. 202 Dr Singleton's notes indicate she met with Ms Rossi on 4 November 2008. The notes record Ms Rossi was distressed at how she was treated at Delmont, that she 'contradicts story from psychiatrist', was 'wanting to take revenge', was angry at lawyers and recent male contacts, and extrapolating this to all psychiatrists. Dr Singleton met with her again on 6 November 2008 and the notes of that appointment state that Ms Rossi remained distressed but less overwhelmed than previously and was directing anger at lawyers and psychiatrists. 203 On 3 or 4 November 2008 she attended an appointment with Ms Allan. 204 On 6 November 2008 Ms Rossi received the Deed in the mail, accompanied by an affidavit and schedule anticipated by the terms of the settlement. She says she tried to contact Mr McCristal. 205 On 1 December 2008 Mr McCristal called Ms Rossi. Ms Rossi was not satisfied with what he told her. She claimed in her evidence that she told him she was not in an emotionally fit state to sign the Deed, although this is not referred to in her diary note of the conversation. 206 Whilst there was a body of documentary evidence about events after this date, including as to the exchange of the documents required to give effect to the settlement under the Deed and Ms Rossi's refusal to accept the settlement monies, it is not necessary to set it out. The passage of time from 29 October 2008, together with Ms Rossi's apparent anger in the subsequent weeks and months about the outcome, has the tendency to distract from the forensic task of assessing the circumstances as at that date.

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The Deed 209 The Terms of Settlement signed by counsel for Ms Rossi and Qantas set out the operative terms and reflected that there would be a deed of settlement. These Terms reflected a development in the negotiations over the course of the settlement conference from the previous offer of $50,000 to a proposal that on its face increased the amount payable to Ms Rossi. It is correct, as Ms Rossi asserted, that the offer referred to in the Your Claim letter was different from that in the Terms of Settlement. 210 The settlement as set out in the Deed involved a mechanism whereby Qantas, whilst denying any liability, would agree to Ms Rossi's claim against it for benefits being reframed and re-pleaded so as to seek common law damages for pain and suffering and pecuniary loss. The mechanism enabled her to receive a sum in damages and so apparently avoid any tax liability attaching to that sum. For this course to be implemented, whilst denying liability, Qantas agreed that a serious injury certificate would issue. Qantas agreed that in consideration of certain matters, it would pay Ms Rossi $75,000 for the pain and suffering and pecuniary loss damages, and $40,000 by way of costs. Although the steps such as re-pleading the claim would be implemented after execution of a deed, the settlement would take effect on execution of the Deed. 211 In consideration for that payment, Ms Rossi was to provide a release of all claims against Qantas, an indemnity, and agree to maintain confidentiality. Although not included in the Deed, the Terms of Settlement provided that despite the confidentiality term, she could discuss the settlement with her family. 212 The mechanism implemented for settlement of the claim was not, in my view complicated. Qantas had denied liability for a common law claim, but agreed to proceed on the assumption that such a claim was made so as to enhance the net return to Ms Rossi. 213 The general effect was that all of Ms Rossi's claims against Qantas were released and resolved without any trial, and she would receive a payment from Qantas. The terms of the Deed were not unduly complex. There were additional documents to be prepared or obtained by her solicitors (such as a notice of past benefits from Medicare) in order to take into account any Medicare or Centrelink payments or liabilities. However, again, there was nothing to suggest that those requirements were unusual or onerous. 214 No submissions were made to the effect that the terms of the Deed were unusual or complex. The terms of the Deed did not unreasonably impose difficult terms or obligations on Ms Rossi. It was only two pages in length, with a one page schedule setting out the nature of the claimed injury and the payment mechanism, and was apparently drafted by Qantas (or its legal representatives). It generally reflected the operative terms also set out in the Terms of Settlement, itself only a short document (four pages). 215 Having regard to the principles discussed above, the nature of the transaction in issue can fairly be described as a final settlement and release of all claims by Ms Rossi against Qantas arising out of her employment in exchange for a payment of $75,000 (plus costs, with an adjustment as required for past benefits), bringing the litigation between them to an end prior to trial.

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Ms Rossi 216 Ms Rossi presented as poised, well-prepared and intelligent. Although at times she appeared anxious about lines of questioning, that anxiety did not appear to me to be of a level unusual for a litigant giving evidence in what is, by its nature, a somewhat stressful environment. Ms Rossi was resistant to accepting inferences contrary to her interests and on occasion would not be swayed from her position, even where it was clear that other evidence, which was put to her, was not consistent with her evidence. I understand that Ms Rossi feels aggrieved and a certain level of emotion is to be expected, and I take that into account. However, in my view the reliability and credibility of Ms Rossi's evidence was diminished by this resistance, her desire to paint Mr McCristal's conduct in a particular light, and her desire to argue things she saw as favourable to her case. This has caused me to conclude that some of Ms Rossi's evidence was unreliable and exaggerated and, despite certain difficulties with the evidence of both Mr McCristal and Mr Hutchinson to which I will come, on some matters I have preferred their evidence over that of Ms Rossi, or concluded that I am not reasonably satisfied that events occurred in the manner she claimed. 217 The following are some examples of Ms Rossi's evidence that have led me to this view: (1) Ms Allan's note of her consultation dated 5 May 2008 refers to John (Mr McCristal) being 'concerned about what Qantas will try to do to Sara'. The note is consistent with Mr McCristal's evidence that on or around 24 April 2008 he became concerned about a material history of Ms Rossi being treated by psychiatrists, a history that predated the impugned conduct by Qantas. His letter to Ms Rossi of 24 April 2008, whether it was sent or not, refers to Ms Rossi's credit being called in issue in light of her apparent failure to initially disclose such history to Dr Gill. As to Ms Allan's note, Ms Rossi said they were Ms Allan's records and told senior counsel for Qantas that 'you would have to ask her'. When asked if she accepted that it was likely that she gave that information to Ms Allan, Ms Rossi said she 'couldn't say for sure'. This reticence to accept an obvious inference, where it was clear that other evidence supported it, was concerning. Either Ms Rossi was told as much by Mr McCristal and conveyed it to Ms Allan, or Ms Rossi volunteered those words to Ms Allan without any apparent foundation. The former is the plausible explanation. The timing of the disclosure to Ms Allan is consistent with this explanation. (2) Ms Rossi denied that she understood from the letter from Mr McCristal of 9 October 2008 that there was a settlement conference and that the aim of the conference was to reach settlement of her claim. I have extracted some of the evidence above (see [147]-[148]). At one point she said 'Well, he sent me a letter and it states what it states, but I did not know that's what it meant'. She said under cross examination that she didn't understand that she was attending a mediation. She said that she believed it was somehow associated with an earlier letter about setting up a meeting with a barrister. The 9 October 2008 letter is clear in in its terms. It stated expressly that 'The purpose of the Conference is to try and reach agreement over settlement of your claim'. It noted that Qantas' lawyers would be in attendance. Ms Allan's consultation note of 21 October 2008 referred to 'heading into Monday (mediation with Qantas Sparke & Helmore)'. Dr Singleton's note of 22 October 2008 said 'review after conciliation hearing on Monday'. Ms Rossi said she 'did not understand that she would be attending a mediation or conciliation' and that Ms Allan and Dr Singleton 'used themselves words of their choosing'. In my view, Ms Rossi had read the letter, understood that she was attending a mediation, understood the purpose of a mediation, and attempted to find an explanation that might explain away the obvious meaning of the letter. She had been to a conciliation before. Ms Rossi's suggestion that Ms Allan and Dr Singleton 'were [as] in the dark as I was' cannot sensibly be accepted. There is no apparent reason that their notes included references to a mediation/conciliation unless they were given that information by Ms Rossi. (3) Ms Rossi gave somewhat confusing and non-committal evidence as to how she came to know that the medical reports of Drs Kornan, Gill and Jackson did not refer to her attending EAP with Ms Buchanan if she had not had an opportunity to look at all of them. She qualified her evidence with statements (apparently with respect to Dr Gill's reports) to the effect that she 'did not read them in their entirety' and she 'did not review them at Sparke Helmore', although she accepted that it was possible that she 'looked over them', and later said she saw the back two pages. It seemed to me that Ms Rossi was reluctant to frankly answer questions about reading the medical reports, because she considered it was in her interests to portray events in a manner that minimised the opportunity for her to review those reports. She may have been concerned that disclosure that she had read the reports would reveal that she was alert to the difficulties she faced in pursuing her claim in the face of the (changed) medical opinion. Whatever her intention, her approach led me to doubt the veracity and reliability of her evidence. In this regard I also observe that in her complaint to the AHRC dated 21 December 2018 the following was included: 4.2 At the meeting Ms Rossi asked Mr McCristal to explain to her why despite her informing all three medico psychiatrists she had been sent to for assessment for her 'Workplace Injury', that not one practitioner reports mentioned that she had attended the Employee Assistance Program or psychologist Louise Buchanan, and why none of the reports referred to the psychologist report, or the file of Dr Altermatt her treating GP at the time of her employment with Qantas. … (4) Ms Rossi's evidence to the effect that she had no knowledge until 29 October 2008 of the need for a document or deed to be signed was also not persuasive when viewed in the context of Dr Singleton's contemporaneous note of her consultation on 28 October 2008. Dr Singleton referred to the 27 October 2008 conference and, importantly, she referred to a 'pitiful' settlement and 'a clause to prevent [Ms Rossi] from discussing her experiences with Qantas'. Logically that information came from Ms Rossi and Dr Singleton confirmed this. There would be no basis for those words to have been included by Dr Singleton unless Ms Rossi had told her something about a clause. That in turn indicates that Ms Rossi must have had knowledge, at least by the time of the 28 October 2008 consultation with Dr Singleton, that a settlement would require some form of deed or document. It follows that such information must have been conveyed to Ms Rossi by Mr McCristal or Mr Hutchinson prior to that time. 218 I also take into account that Ms Rossi's evidence about the events of 27-29 October appeared to become sharpened as each additional affidavit was prepared. For example, her fourth affidavit of 22 October 2020 contained many new assertions that had not previously been made, such as that she 'began to feel that my surroundings were surreal, and I could only hear snippets' and being 'physically sick', 'paralysed', 'blood pressure increasing' and 'oesophageal spasms'. Qantas asked that I infer that 'embellishments' were made after receipt of Dr Parmegiani's report of 21 October 2020 and after Ms Allan consulted with Ms Rossi (redacted notes of a consultation were in evidence). Ms Rossi accepted that she read Dr Parmegiani's report before making her 22 October 2020 affidavit. In light of the concerns I have raised above as to the reliability of Ms Rossi's evidence, I have come to the view that Ms Rossi has exaggerated aspects of her evidence and that many of these late additions are unreliable. I have not drawn an inference that the 22 October 2020 iteration of evidence was a deliberate and contrived response to Dr Parmegiani's report - it may have been, but I am not sufficiently persuaded of that. However, even without such inference, I have treated with caution aspects of Ms Rossi's memory of events. 219 My concerns about Ms Rossi's evidence also arise from an inconsistency between Ms Rossi's assertions that she could be very confident of the accuracy of her recollections, and her suggestions that her memory had been negatively affected. Qantas pointed to two examples. 220 First, after she denied that she had embellished her story with each new affidavit, she asserted 'No. No, Ms Raper. I can feel events of those three days and the lead-up to those days like they happened yesterday'. However, she asserted later that 'I have very little memory of the 27th in the evening other than driving', that 'I can't give you an affirmative answer of what I was thinking at all. I was in a black hole', that 'I have a black hole in this space of time', that she has 'very little' recall of what happened after the meeting at Sparke Helmore on the 27th, and that she cannot even recall what she talked to Ms Allan about that evening, even with the benefit of Ms Allan's notes of the conversation. 221 Second, after she accepted that she had been able to speak to her lawyers about things such as why her psychiatrists were focussing on her past medical history that she thought was irrelevant, why Ms Buchanan's notes were not provided to them and what she perceived to be inaccuracies in Dr Gill's reports after she received them on 27 October 2008, she was challenged on her assertion in her affidavit that she had felt 'paralysed' after being told about Dr Gill's change of opinion. She defended her assertion by saying that she was 'transfixed', yet she accepted that she was able to articulate her challenges to the reports to her lawyers. 222 These inconsistencies also served to add doubt to the reliability of aspects of Ms Rossi's evidence. However, as is apparent below, I have accepted parts of her evidence, particularly where she has explained why she thought or acted in a particular way, where the evidence is consistent with notes and documents, and where it is inherently likely.

[39]

Mr McCristal 223 It is fair to say that Mr McCristal did not have a good independent recollection of all events. This is perhaps unsurprising considering the passage of time. He also gave the impression of being fairly uninterested in the proceeding and his evidence was at times clumsy. I note this because he was formally a party to the proceedings before leave to proceed against him was refused. While in theory he might have an interest in protecting his personal reputation, he gave no sign of that being a concern to him. He was not defensive. I consider he attempted to genuinely recall the events as best he could, and he was willing to make concessions, with a pattern of denying only those allegations that he clearly did not consider were credible. For example, he readily conceded that he might have been running late on the day of the first settlement conference at Sparke Helmore, and that he may have been involved in some 'banter' with the Qantas lawyers upon arrival. However, he denied that he would have instructed his team in the office not to speak to Ms Rossi. 224 Mr McCristal was mistaken about a number of factual matters in his evidence (as was Ms Rossi on her own case - as the changes in her evidence referred to at [154] and [187] above indicate). However, in the end many of the complaints made by Ms Rossi about Mr McCristal's evidence related to the manner in which he was said to have treated her, alleged duress and the quality of his legal advice; matters that were not central to resolving the question of Ms Rossi's capacity. 225 The importance of Mr McCristal's evidence is that he was present on the relevant days with Ms Rossi and observed the events. Ms Rossi provided detailed submissions criticising the credibility of his evidence based on the timing and manner of his communications with Ms Rossi prior to October 2008, the challenges to the accuracy of his evidence as to how and when he briefed Mr Hutchinson and other matters of failure to meet 'best practice'. In the end I have not found the impugned evidence to be particularly relevant. I am not asked to determine matters relating to professional standards or a cause of action based on negligence or duress. 226 There are, however, four matters that I wish to directly address. First, much was made by Ms Rossi of Mr McCristal's failure to produce his entire file from when he represented Ms Rossi. It is important to recall that he is not a party to this proceeding. Although he was called to give evidence by Qantas, he did not appear to be in anyone's camp. He bears no onus. There is no reason Ms Rossi could not have called for her own file, and in doing so waived legal professional privilege if required. I accept that, subject to whatever was on the file, it might be that Mr McCristal would have been in a position to better refresh his memory had he perused the file. But despite Ms Rossi's submission to the contrary, that is not a sufficient reason to reject the evidence that he was able to give on the basis of credibility. There was evidence that Mr McCristal is no longer part of the Maurice Blackburn group of companies. It is unclear how any file in respect of Ms Rossi's matter would still be in his possession, custody or control. Mr McCristal said in cross examination that his old file is in the possession of Maurice Blackburn, and that his solicitors in these proceedings provided him with documents from that file, but he did not review or ask for the entire file. There would seem to be nothing malevolent in that approach and I draw no adverse inference based on the failure by Mr McCristal to produce the file. 227 Second, I find below in Ms Rossi's favour that she made various unsuccessful attempts to contact Mr McCristal prior to 27 October 2008. However, I do not accord to those events the malevolent intention painted by Ms Rossi. Having regard to the lapse of time it is not surprising that Mr McCristal may not have a memory of every day events that might occur in a legal practice such as messages to call or scheduled and cancelled meetings. I do not consider Mr McCristal was being evasive about these matters when he failed to recall them. To my mind the relevance of the evidence is that it is consistent with Ms Rossi's claim that Mr McCristal did not provide her with further advice during this period. I do not infer that Mr McCristal deliberately avoided Ms Rossi in order to avoid telling her something, or was otherwise evasive. 228 Third, Ms Rossi makes much of an issue as to whether Mr McCristal should have sought medical records sooner, the state of his knowledge about Ms Rossi's pre-2001 history of being treated for a psychiatric condition and whether he had some role to play in the delay in Dr Gill being informed of history. In the end none of this evidence is particularly useful in assessing the main issue. It is relevant, in that the documents reveal that Dr Gill changed his opinion only shortly before the settlement conference, and that both the change in his opinion and the fear that Qantas would challenge Ms Rossi's credibility as a result were instrumental in causing Mr McCristal to have concerns about the viability of Ms Rossi's claim. Apportioning blame to Mr McCristal does not change the fact that those concerns arose. 229 Fourth, as I have already mentioned, Mr McCristal was mistaken about some matters, having regard to relevant documentary evidence. For example, Mr McCristal was asked in cross examination whether he would have been paid if Ms Rossi did not sign the Deed and he said 'no'. He was not taken to the terms of the costs agreement, which provided that his firm was entitled to charge professional fees 'upon a successful outcome being achieved' (clause 2). 'Successful outcome' was defined to include 'an offer of settlement which we recommend as acceptable which in our reasonable opinion represents an appropriate conclusion to your claim or proceedings' (clause A). It would seem, therefore, unlikely that there was any financial motivation for Mr McCristal to pressure Ms Rossi to settle her case, having regard to the costs agreement. Nor, despite Ms Rossi's submissions, do I consider the fact that Mr McCristal's firm stood to be paid out of the settlement proceeds, an ordinary aspect of legal practice, colours his evidence. 230 In summary, I have largely accepted Mr McCristal's evidence as to the key events, and preferred it over parts of Ms Rossi's, as identified below. Where I have done so, it is because I consider Mr McCristal's evidence was provided in a fairly frank and objective manner, included concessions, and was inherently credible and more reliable than that of Ms Rossi, having regard to the matters relating to Ms Rossi's evidence that I have already addressed.

[42]

Limitation rulings 233 It is appropriate to briefly say something about the various limitations as to the use of evidence made under s 136 of the Evidence Act in this matter. Most were made by consent, expressly or implicitly. Limitation orders were made by consent with respect to parts of Ms Rossi's evidence to address many statements of opinion and conclusions included in those affidavits. Orders were also made with respect to the majority of her diary notes. 234 Orders were made limiting the use of the many medical reports (apart from those of the witnesses) and records, having regard to s 60 of the Evidence Act and the risk of unfair prejudice if they resulted in the admission of matters in them as proof of facts: Guthrie v Spence at [75]. The limitation was to the effect that the materials were not evidence of the truth of any matters asserted or the truth of the matters about which any opinions were expressed. Having reviewed the transcript, there is a question as to whether an order was formalised with respect to the briefing materials provided to Dr Parmegiani and Dr Lee, although limitation orders were sought, at least with respect to the materials provided to Dr Parmegiani. It is appropriate that a limitation in the above terms should apply to use the use of such materials and to those materials provided to Dr Lee. The same limitation should apply to the reports of Dr Kornan, Dr Gill and Dr Jackson attached to Ms Firth's affidavit (although there may be some duplication, as some of those reports are also included elsewhere). 235 Limitation orders were sought and implicitly agreed during the course of the trial with respect to the notes of both Ms Allan (ts 189-193) and Dr Singleton (addressed in more detail below). I deal with their lay evidence when I address the expert evidence. 236 More generally, I have also taken into account matters of weight as discussed in TJ (on behalf of the Yindjibarndi People) v Western Australia (No 3) [2015] FCA 1359 at [8]-[10].

[43]

Standard of proof 237 Before setting out certain findings, it is worth recalling that the standard of proof is governed by s 140 of the Evidence Act, which provides: (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence; and (b) the nature of the subject-matter of the proceeding; and (c) the gravity of the matters alleged. 238 Whilst noting the caution in Papakosmas v The Queen (1999) 196 CLR 297 at [10] against treating a provision of the Evidence Act as a codification of common law principles, it is generally accepted that s 140 reflects the principles explained by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336: see Setka v Gregor (No 2) [2011] FCAFC 90; (2011) 195 FCR 203 at [24] (Lander, Tracey and Yates JJ); and Australian Securities and Investments Commission v Mitchell (No 2) [2020] FCA 1098 at [1123] (Beach J). Of particular assistance is Dixon J's explanation at (at 361-362): The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

[44]

Certain findings 239 I set out below my findings about a number of events. 240 Ms Rossi participated in an unsuccessful conciliation of her claims against Qantas in 2006. Ms Allan had assisted her in this process, providing a report. 241 Ms Rossi knew from 23 July 2007 that the prospect of succeeding in a negligence claim and seeking damages was not good. On that day proceedings were commenced against Qantas for weekly compensation. 242 Ms Rossi knew from 6 September 2007, when she received Mr McCristal's letter, that she would be required to undergo psychiatric assessments. The psychiatrist retained on her behalf for the purpose of the proceeding was Dr Gill. 243 Based on the description of her history set out in his first report, Ms Rossi did not provide Dr Gill with a fulsome disclosure of her prior history of psychiatric treatment. 244 Based on the information then available to him, it was Dr Gill's opinion that Ms Rossi's psychiatric injury was caused by her workplace. 245 Ms Rossi knew from about 24 April 2008 that Mr McCristal had concerns about Dr Gill's report. It had become apparent from other medical reports that pre-dated 2001 that Ms Rossi had a history of depression and psychiatric treatment, and that such history had not been taken into account by Dr Gill in forming his opinion. Mr McCristal was concerned that this would change Dr Gill's assessment of the extent to which the conduct of Qantas had caused any injury. Mr McCristal was also concerned that if Qantas became aware that Dr Gill had not been provided with a full history, it might use this information to challenge Ms Rossi in court. 246 Objectively, Mr McCristal's concerns were valid. 247 I am prepared to assume in Ms Rossi's favour that she did not receive the letter of 24 April 2008. The letter at minimum constitutes a contemporaneous note written by Mr McCristal recording his concerns. Regardless, Ms Rossi acknowledged speaking to Mr McCristal on 24 April 2008 about the discrepancy in information about her medical history. I also find that Mr McCristal spoke to her about the risk that Qantas might use that discrepancy against her. I make this finding having regard to Ms Allan's note (see [217(1)] above) and because Mr McCristal referred to it in his letter, and so it is likely that it would have been something he raised in their conversation. 248 Ms Rossi knew that both Dr Jackson and Dr Kornan had provided reports (prepared in June and July 2008) that included reference to the more detailed pre-2001 medical history and that both concluded that her psychiatric condition predated the conduct by Qantas to which Ms Rossi attributed her injury. Ms Rossi received copies of those reports prior to the settlement conference. Ms Rossi therefore knew that there was evidence from a number of specialists who did not support her claim as to the cause of her injury. 249 Ms Rossi also knew there was a prospect that Dr Gill would change his mind. She had been told as much by Mr McCristal in April 2008, and she met with Dr Gill again in September 2008 in that regard. 250 Ms Rossi knew from on or about 9 October 2008 that there was a settlement conference due to take place on 27 October 2008. The letter of that date from Mr McCristal was unambiguous: the purpose was 'to try and reach agreement over settlement of your claim' and with Qantas involved. However, having regard to the evidence that I have extracted above (at [147]-[148]), I consider Ms Rossi attempted to downplay her awareness of the purpose of the meeting because she perceived that to do so would assist her case. However, her evidence in this regard was disingenuous. The letter and the notes of Ms Allan and Dr Singleton are reliable contemporaneous evidence in this regard (see [217(2)] above). 251 I accept that Ms Rossi attempted to contact Mr McCristal in advance of the 27 October 2008 but was unable to do so. I am not persuaded, having regard to my concerns as to the reliability of her evidence, to accept Ms Rossi's evidence to the effect that Mr McCristal told his staff not to speak to her. Although a solicitor might say (quite properly) that non-legal staff cannot give legal advice to a client or words to that effect, it would be highly unlikely that staff would be told not to speak to a client altogether. But in any event nothing turns on this, and I repeat my comments at [227] above. 252 Having regard to what Mr McCristal said was his normal practice and to Ms Rossi's evidence, I accept that Dr Gill's reports were not provided to Ms Rossi ahead of the settlement conference. Dr Gill's supplementary report addressed the earlier medical history and included a revised assessment, to the effect that he considered that Ms Rossi's psychiatric condition was very largely attributable to a pre-existing depressive illness, and he revised his estimate of impairment attributable to work-related factors to 5%, with a 12% level of impairment attributable to work for industrial purposes. 253 Ms Rossi spoke to both Ms Allan and Dr Singleton in the week preceding the settlement conference. She told them about the conference and expressed concern and distress. She planned to speak to Dr Singleton after the conference. 254 At the pre-conference meeting on 27 October 2008 Mr McCristal discussed Dr Gill's reports with Ms Rossi. He had copies of them with him. I will assume in Ms Rossi's favour that she was not given full copies of the reports to read. However, I am satisfied that she was informed and understood that Dr Gill had changed his position, that she knew enough about what Dr Gill had said to challenge its accuracy with him and Mr Hutchinson, and that she also specifically understood that Dr Gill had reduced his assessments to 5% and 12% respectively for impairment caused by work and level of impairment. Ms Rossi said that Mr McCristal read those parts out. But beyond them being read out, I find that she knew and understood what Mr McCristal said about those matters and that the change in Dr Gill's assessment would impact on the prospects of success of her claim. I make this finding taking into account that Ms Rossi reported those percentage figures to Ms Allan that evening. 255 I also accept that Ms Rossi raised her concerns that the psychiatrists had not referred to the EAP sessions with Ms Buchanan in their reports. Taking this into account, I also accept that Ms Rossi indicated to Mr McCristal and Mr Hutchinson that she did not agree with the psychiatric reports. The focus on the lack of reference to EAP suggests there was a concern about accuracy. 256 I have no doubt Ms Rossi was upset at the meeting about the change in the prospects of her claim. So much would be an entirely understandable response. I doubt that Ms Rossi used expressions such as the reports being a 'lie'. That is an odd way to describe medical reports. But it matters little. I accept that she expressed her disagreement with the reports to Mr McCristal and Mr Hutchinson. I accept this because Mr Hutchinson reported that 'she had great difficulty accepting views that did not accord with her own assessment of the merits of her case'. 257 However, I consider that Ms Rossi has otherwise exaggerated her symptoms at this meeting. The evidence, raised for the first time in her fourth affidavit, that she felt 'completely paralysed' must be viewed in the context of what she was able to achieve at the meeting - that she challenged the reports, was aware of the different percentage figures settled on by Dr Gill, recognised that the reports all failed to refer to EAP or Ms Buchanan, and asked about Ms Buchanan's notes. To my mind that level of engagement does not fit comfortably with her evidence that she felt paralysed and that Mr Hutchinson and Mr McCristal were cutting her off. Having regard to the concerns I have expressed about her tendency to exaggerate matters where she perceived it might be in her interests to do so, and whilst I accept that Ms Rossi was upset and in a stressful environment, I am not persuaded that she felt 'completely paralysed', so upset or otherwise had symptoms such that she was unable to comprehend or contribute to the discussion. She was engaged and able to ask questions about the status of her claim and in particular was able to understand the implications of Dr Gill's report. 258 Further, acknowledging that Mr McCristal did not claim to have a clear recollection of the meeting, his evidence suggested there was no obvious outward sign that Ms Rossi was in distress or seemed overwhelmed. As Mr McCristal was an experienced solicitor in the field of workplace stress claims, it seems to me likely that if there had been overt signs that caused Mr McCristal concern about Ms Rossi's mental state at the time, he would have noticed them and acted upon them, as he suggested he would. 259 I also accept that Mr Hutchinson told Ms Rossi she did not have a strong case. Although Mr Hutchinson did not have good recall of the meeting, he recalled the relevance of a difference in psychiatric history, a matter that supports his recollection as to giving Ms Rossi advice. Mr Hutchinson's and Mr McCristal's evidence was also consistent in this regard. 260 Mr McCristal also discussed with Ms Rossi the difficulty she might have in obtaining a serious injury certificate due to her past medical history, a discussion Ms Rossi recalled. 261 I am not persuaded that Mr McCristal made threats along the lines suggested by Ms Rossi that he would not represent her in court if she did not pay upfront. It would be an odd thing to say in the face of a 'no win, no fee' retainer, but regardless, I prefer Mr McCristal's evidence on this point. He denied that he had said words to that effect, but explained his rationale - at that point he did not know if Qantas were going to make any offer at the settlement conference. His explanation was inherently plausible. 262 It is not necessary to make a finding as to whether Mr McCristal explained the mechanics such as who would sit where and when at the settlement conference. Although he recalled that he did, and I have no reason to doubt that evidence, little turns on it. 263 As to the settlement conference itself, it is apparent that Ms Rossi did not meet with the Qantas representatives, but rather Mr McCristal and Mr Hutchinson spoke to them and reported back to Ms Rossi. There is nothing particularly unusual in such an approach to mediation. 264 Ms Rossi recalled a number of things from the session. She said she received an offer of $50,000 with no provision for ongoing medical expenses (and this is consistent with the information about a $50,000 offer contained in the Your Claim letter). 265 She recalled the changes in the percentage figures provided by Dr Gill. She knew that she had to come back on 29 October 2008 to continue the settlement conference. She knew that Mr McCristal or Mr Hutchinson were going to do something about Ms Buchanan's notes. She recalled saying that Mr Hutchinson and Mr McCristal were not listening to her - something Mr Hutchinson said was possible, in light of the difference in the views that they held. 266 There were other specific things that Ms Rossi denied or did not accept. She did not accept that it was likely that at the meeting there was talk about entering into a deed, although she accepted that something was said about signing documents. I infer that Ms Rossi knew that a settlement would involve something being signed to confirm arrangements, whether called a deed or otherwise. She did not accept that it was likely that there was talk of the need for her to enter into a document which contained a provision that would prevent her from discussing her experiences at Qantas, but according to Dr Singleton's note, she told Dr Singleton about such a term on 28 October 2008. On that basis, I do not consider Ms Rossi's evidence, to the extent that she sought to minimise the prospect that there had been the opportunity for discussion and explanation at the settlement conference, is reliable. 267 Further, Ms Rossi denied that she had to consider whether she was going to accept or reject Qantas' offer, and said she could not say what she was thinking. This is another example of her evidence that does not sit well with other evidence. Ms Allan's notes of 27 October 2008 refer to Ms Rossi deciding whether to 'accept the offer'. In those circumstances I infer that Ms Rossi understood that she needed to consider making a decision and told Ms Allan of this. 268 There are other claims made by Ms Rossi about the meeting that I am not persuaded should be accepted. I am not satisfied that Mr McCristal said to Mr Hutchinson 'Did you understand anything she just said?'. Mr McCristal denied that he said this and denied that Ms Rossi said anything that was jumbled or incoherent. Mr Hutchinson also had no recollection of Mr McCristal saying anything to that effect. I am left with conflicting evidence, and in the end I am not persuaded that it was said. It seems to me that it is a comment that would raise alarm bells in a practitioner of Mr Hutchinson's experience, as would the fact that a person was speaking 'jibberish' or spoke in a manner that could not be understood. But that was not Mr Hutchinson's evidence, recalling that he was able to understand Ms Rossi 'even if she was imprecise'. I prefer Mr Hutchinson's evidence in this regard. My impression was that Mr Hutchinson was frank in his evidence about this meeting, limited though it was, acknowledging for example that Ms Rossi may well have said 'you're not listening to me'. He was not evasive. 269 The fact that Ms Rossi revised her evidence as to a conversation with Mr McCristal (see [154] above) undermines the reliability of her memory as to that conversation as a whole. I am therefore not persuaded that she said 'I am not able to do anything' or words to that effect - at least not in any sense that might have suggested to Mr McCristal or Mr Hutchinson that she was in a state where she was incapable of making any decision or understanding the discussion. For the same reason I am not satisfied that she said she needed to see a doctor. In this regard I also take into account Mr McCristal's evidence (see [157] above), which is inherently credible and which I accept. 270 Similarly I am left with a conflict of evidence as to whether Mr Hutchinson said something to Ms Rossi which referred to cancer. Mr McCristal denied the comment was made. It was not put to Mr Hutchinson. In those circumstances, I do not consider I can responsibly find that it was made but that does not have any real effect on my findings as to this meeting. To the extent Ms Rossi contended that as a result of the alleged comment she could barely speak, I have already found that there was nothing in her mode of speech that revealed an issue to Mr Hutchinson or Mr McCristal (see [268] above). 271 I accept in Ms Rossi's favour that she felt upset and distressed at the conference about the manner in which events were unfolding and, in particular, that she was upset at what she perceived to be an accusation that she had misled Dr Gill. Mr Hutchinson's evidence is consistent with a scenario where Ms Rossi did not agree with what had been said by the doctors or the prospects of her case. His evidence that they were 'going around in circles' is credible and consistent with the likelihood that Ms Rossi was putting forward views that conflicted with those of himself and Mr McCristal. Whilst I accept that Ms Rossi now firmly believes that she was in the state of being 'overwhelmed' and unable to speak that she described, it does not accord with the level of discussion that apparently ensued at the conference, her specific recollections that she passed on to Ms Allan that evening, or with Mr Hutchinson's evidence as to discussions about the medical evidence and settlement going around in circles. This also persuades me to prefer Mr McCristal's evidence to the effect that there was nothing in Ms Rossi's presentation that caused him to believe she did not understand what was being discussed or that she had trouble communicating her views. I am not persuaded that there was anything striking about the fact that the meeting ended and was adjourned to 29 October 2008. It seems likely that that both Mr McCristal and Ms Rossi may have needed time to consider the settlement offer that had been proposed at that point. That would not be unusual. 272 As to what transpired after the conference, even accepting that Ms Rossi could not recall where she parked her car, that evidence does not assist. I do not consider that failure to recall a matter such as that has any real bearing on the more specific issues at hand. It may well be consistent with Ms Rossi being preoccupied and upset about what had happened at the conference, but it does not take matters much further. Nor do I need to make any finding about whether or not Ms Rossi and Mr McCristal went to get coffee. It would seem unlikely in light of Mr McCristal's health issue that he reported, but regardless the more pertinent fact is that Ms Rossi recalled raising with Mr McCristal the matter of obtaining Ms Buchanan's notes. That is a matter that relates to what had gone on at the settlement conference and indicates that Ms Rossi was able to process and think about the events of the day. 273 So much is also revealed by the discussion she had with Ms Allan that evening. I find based on Ms Allan's note that Ms Rossi told Ms Allan about Dr Gill's revised percentage figures, that she needed to decide whether to accept an offer, that she wanted to pursue Ms Buchanan's notes and that she was unhappy about the manner in which she felt her mental health history had been used against her (I comment below on Ms Allan's affidavit evidence about this phone call but it does not affect this finding, as I consider the content of the note to be the more reliable evidence). 274 I accept Ms Rossi's evidence that there was a phone call between her and Mr McCristal on 28 October 2008. Although Mr McCristal does not recall it, it fits sensibly within the chronology of events. However, I have reservations about Ms Rossi's evidence that the call was in effect traumatic and that Mr McCristal was verbally aggressive and again demanded costs up front. It is odd that, if that were the case, Dr Singleton's note of her consultation with Ms Rossi that day makes no mention of the lawyer being verbally aggressive. It is also odd that Ms Rossi said that Dr Singleton recommended that she raise her concerns with her lawyers - the same lawyer that allegedly had been verbally aggressive with her that day. In any event, the consultation note reveals that Ms Rossi told Dr Singleton about the offer, that she considered it was pitiful, and that there was to be a clause that would prevent her from discussing her experiences at Qantas with anyone. Ms Rossi knew and recalled all such matters. I have no difficulty inferring that Mr McCristal may have been forthright in his advice to Ms Rossi that day and spoke in a way that was intended to reinforce that, but I am not satisfied that he was 'verbally aggressive', if by those words Ms Rossi intended to convey that he shouted or spoke in a bullying or abusive manner. 275 Based on Dr Singleton's note, I accept that Ms Rossi was distressed at the time that she met with Dr Singleton. Ms Rossi was aware and conveyed to Dr Singleton that the discussion between the lawyers might not go well the next day. Dr Singleton was sufficiently concerned about Ms Rossi to discuss voluntary private hospital admission depending on the outcome of the following day. 276 On the same day, Ms Rossi received and considered the Buchanan notes, noted apparent discrepancies in them, and also spoke to Mr Hutchinson. Mr Hutchinson's evidence about this phone call was plausible and he readily conceded that in the context of the conversation, he may have said something along the lines that 'this is not a conspiracy'. I assume in Ms Rossi's favour that he said those words. That he might say that is not surprising in the context of different views. It is not a malevolent comment. I accept Mr Hutchinson's evidence about the call. He discussed with Ms Rossi that she would need to give instructions about any settlement to Ms Rossi. Clearly, the claim had not been resolved at that time, Ms Rossi's views were sought, and the settlement discussions were to continue the next day. 277 Turning to the reconvened settlement conference, Ms Rossi resisted any suggestion that she was given or saw copies of the Your Claim letter, the Terms of Settlement or the Deed. Her evidence extracted at [181], [184] and [185] above reveals her concern to counter any suggestion that she had sufficient access to those documents to read them. The level of detail provided is striking. But in the end, whether she saw or read those documents does not resolve the proceeding. It is not in issue that the documents were all read to her and that Mr McCristal went through them with her. 278 The importance of the Your Claim letter is that it recorded the difficulties with Ms Rossi's claim, particularly insofar as pursuing a negligence claim was concerned, with the requirement of a serious injury. 279 The revised offer from Qantas ameliorated some of those issues, in that Qantas was prepared to settle on terms that would recognise the potential to bring a negligence claim, despite the difficulties alluded to, and whilst denying liability. This would enhance the quantum that might be received by Ms Rossi. 280 Mr Hutchinson considered it a good offer. Objectively, that was the case in the circumstances. 281 It follows that the Terms of Settlement covered different ground to that covered by the Your Claim letter. It is not surprising that Ms Rossi concluded that the terms were inconsistent or to some extent 'contradictory', to use her word. They were. The Your Claim letter set out risks associated with Ms Rossi's claim and sought instructions as to a settlement sum. The Terms of Settlement reflected the offer made by Qantas which introduced a willingness to compromise a claim in negligence for the purpose of the settlement. 282 However, Mr McCristal also read the Terms of Settlement to Ms Rossi and read her the Deed. Mr McCristal's evidence under cross examination displayed that he recalled the mechanism by which the settlement was to proceed and I accept that he explained it to Ms Rossi. 283 Ms Rossi had been told by Mr McCristal that it was unlikely that she could prove negligence and obtain a serious injury certificate. She appreciated at the time that a settlement amount would need to take into account Medicare and Centrelink expenses and this was a factor in seeking a higher payment. 284 Ms Rossi took into account various matters when she signed the Deed. She had concerns about the consequences if she didn't sign and knew that there might be costs consequences. She raised the fact that she wanted to be able to discuss the settlement with her family. She was reluctant to concede that she knew that Mr McCristal and Mr Hutchinson were of the belief that she didn't have a good case, despite the Your Claim letter that made that apparent. Ultimately she accepted that 'their view about her case had been imparted in some sentiment to me' (see [183]). 285 I find that Ms Rossi knew that there were difficulties with her claim that had been exacerbated by the change in Dr Gill's position. I find that Mr Hutchinson advised her to accept the revised offer as it was in her interests. Ms Rossi knew that her view differed from that of Mr McCristal and Mr Hutchinson. Both Mr Hutchinson and Mr McCristal told her that her prospects of success were not good. 286 Ms Rossi claimed to be unable to articulate her feelings at the time, and said she felt paralysed and consumed by worry about the consequences if she did not sign. She was concerned by 'everything that had happened, everything that was going on'. I accept that Ms Rossi was anxious about the settlement and that she displayed disappointment in the offer, disappointment that Mr Hutchinson observed and recalled. To this extent I prefer Mr Hutchinson's evidence over that of Mr McCristal's, who recalled that she seemed happy with the agreement. Ms Rossi was disappointed and was able to convey that. Mr Hutchinson also recalled that Ms Rossi gave instructions to accept the higher offer. He was mistaken as to the amount, but his recall of there being a higher offer is consistent with the documentary evidence. On balance I am satisfied that after receiving advice that the deal was in her interests, Ms Rossi conveyed to Mr Hutchinson a willingness to accept the Terms of Settlement and enter into the Deed, despite her obvious disappointment in that outcome. Ms Rossi did not say in her evidence that she did not understand the Deed. 287 I have not found that there was conduct on the part of Mr McCristal or Mr Hutchinson that might constitute 'duress' or undue pressure to settle or sign. Whilst Ms Rossi claimed that she felt under duress, the objective circumstances in which the conference played out do not reveal evidence of duress. The objective circumstances assist in determining the reliability of Ms Rossi's evidence, and whether there might be some exaggeration of her claimed mental state. Had there been outward signs it would have been easier to accept Ms Rossi's evidence that she was in a highly emotional state. I have found there were no such outward signs, above her appearing upset and disappointed. Whilst I accept that Ms Rossi now, many years later, is committed to her version of events, having regard to the issues as to reliability that I addressed above (at [217]), I am of the view that her evidence as to how she felt at the time was exaggerated. 288 Both Mr McCristal and Mr Hutchinson knew from the medical reports that Ms Rossi had a diagnosed psychiatric condition. Indeed that was at the centre of her claim. However, Ms Rossi's conduct in their presence was not such as to raise concerns on their part about whether she understood the Terms of Settlement , the terms of the Deed or had capacity to enter into it. 289 Finally as to the conference, and whilst it is not a significant point, I am not satisfied that there was a 'kick under the table' by Mr Hutchinson as Ms Rossi alleged. Mr Hutchinson was 'as certain as he could be' that it never happened and I accept his evidence, as his explanation that he would never kick a solicitor is plausible. Mr McCristal denied that it happened. Even if there were any such contact, it is not apparent that it was deliberate or of any moment to either Mr Hutchinson or Mr McCristal. I would not ascribe any relevance to such contact. 290 After the meeting concluded, Ms Rossi was bitterly disappointed in the outcome. She was distressed. She was angry at how she perceived she had been treated. I accept this having regard to Dr Singleton's evidence about her conversation with Ms Rossi, and her willingness to seek to arrange a private hospital admission for the following day for Ms Rossi. However I treat the post-execution evidence with some caution as it is unclear to what extent Ms Rossi's anger or distress may have increased upon reflection of the day's events and Ms Singleton's note did not record Ms Rossi reporting any dissatisfaction with the terms of settlement or the Deed. 291 I accept that Ms Rossi attended a private hospital the following morning, but she declined to be admitted. 292 Other evidence I have not found particularly useful. For example, I have not dwelt on events that post-date the end of October 2008 because the evidence suggested that Ms Rossi was upset about the circumstances of entry into the Deed, and that may well have manifested as additional anxiety and distress after the day with which I am primarily concerned. Similarly, I have not found the evidence about whether or not Ms Rossi was in a state to drive to be helpful. Again it seems to me that capacity to drive did not assist with an assessment of capacity with respect to entry into the Deed. I raise these matters simply to record that I have not overlooked this and other such evidence - but I have not found it useful in resolving the question at hand.

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Principles 293 An expert report needs to comply with the formal requirements of r 23.13 of the Rules and the Harmonised Expert Witness Code of Conduct: see Expert Evidence Practice Note (GPN-EXPT), Annexure A. Those requirements include, amongst other things, that the report must: (a) contain particulars of the training, study or experience by which the expert has acquired specialised knowledge; (b) identify the questions the expert was asked to address; (c) set out separately each of the factual findings or assumptions upon which the expert's opinion is based and the reasons for each of the expert's opinions; and (d) identify any literature or other materials utilised in support of the opinion. 294 The matters set out in r 23.13 of the Rules and the Code are similar to the matters set out in the passage of Heydon JA in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 705; (2001) 52 NSWLR 705 at [85]; and in Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 at [37] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). 295 In Dasreef the majority said: [31] … In considering the operation of s 79(1) it is thus necessary to identify why the evidence is relevant: why it is 'evidence, that if accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding'. That requires identification of the fact in issue that the party tendering the evidence asserts the opinion proves or assists in proving. [32] To be admissible under s 79(1) the evidence that is tendered must satisfy two criteria. The first is that the witness who gives the evidence 'has specialised knowledge based on the person's training, study or experience'; the second is that the opinion expressed in evidence by the witness 'is wholly or substantially based on that knowledge' … [37] It should be unnecessary, but it is nonetheless important, to emphasise that what was said by Gleeson CJ in HG (and later by Heydon JA in the Court of Appeal in Makita (Australia) Pty Ltd v Sprowles) is to be read with one basic proposition at the forefront of consideration. The admissibility of opinion evidence is to be determined by application of the requirements of the Evidence Act rather than by any attempt to parse and analyse particular statements in decided cases divorced from the context in which those statements were made. Accepting that to be so, it remains useful to record that it is ordinarily the case, as Heydon JA said in Makita, that 'the expert's evidence must explain how the field of "specialised knowledge" in which the witness is expert by reason of "training, study or experience", and on which the opinion is "wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion propounded'. The way in which s 79(1) is drafted necessarily makes the description of these requirements very long. But that is not to say that the requirements cannot be met in many, perhaps most, cases very quickly and easily. That a specialist medical practitioner expressing a diagnostic opinion in his or her relevant field of specialisation is applying 'specialised knowledge' based on his or her 'training, study or experience', being an opinion 'wholly or substantially based' on that 'specialised knowledge', will require little explicit articulation or amplification once the witness has described his or her qualifications and experience, and has identified the subject matter about which the opinion is proffered. (footnotes omitted) 296 Any failure to comply with r 23.13 of the Rules does not automatically make any expert evidence inadmissible: Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 5) [2015] FCA 571 at [11]. But non-compliance with aspects of the requirements of the Rules can go to weight: Herron v HarperCollins Publishers Australia Pty Ltd [2022] FCAFC 68; (2022) 292 FCR 336 at [498]. 297 There was no real dispute between the parties as to the relevant principles to be applied.

[46]

Dr Singleton 298 Ms Rossi called Dr Singleton as an expert witness. Ms Rossi consulted with Dr Singleton between February 2007 and August 2014. Dr Singleton provided two reports, dated 8 October 2020 and 18 October 2020 respectively. As is apparent from the events set out above, Dr Singleton also gave lay evidence about her consultations with Ms Rossi. 299 Qantas objected to Dr Singleton's reports insofar as she purported to provide expert evidence of Ms Rossi's capacity at the relevant time. Qantas sought a limitation order with respect to the material relied upon by Dr Singleton for the purpose of giving expert evidence (file notes, letters from instructing solicitors, copies of affidavits of Ms Rossi and others, other medical reports, clinical files etc) to the effect that the materials were not admitted as evidence of the truth of the matters asserted by Ms Rossi or the truth of the matters about which opinions were expressed (that is, a limitation consistent with the other evidence limitation directions agreed by the parties). 300 Ms Rossi did not present her case on the basis that the content of matters recorded in (for example) consultation notes was to be admitted as proof of the underlying matters disclosed by Ms Rossi to Dr Singleton. Ms Rossi gave evidence about the underlying matters relating to the events of 27 to 29 October 2008, as did other relevant witnesses. It was acknowledged that the notes recorded matters that were told to Dr Singleton by Ms Rossi. Further, Dr Singleton accepted under cross examination that she accepted matters as reported to her by Ms Rossi in forming her opinion. In those circumstances, and whilst it may not be strictly necessary for such a direction to be made in order for the Court to limit the use to be made of all tendered material, I accept Qantas' submission that it is appropriate that there be a limitation with respect to the materials referred to in GS1 (exhibit to Dr Singleton's affidavit), excluding her actual reports. 301 Returning to Dr Singleton's two reports, I have determined to admit them, including those parts that convey her opinion, as explained later in these reasons.

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Dr Singleton's lay and expert evidence 302 At the time she gave her evidence, Dr Singleton was a general practitioner of 20 years' experience, with a specific interest in mental health, including working with asylum seekers in primary and specialist mental health teams. During 2008 Dr Singleton was working as a general practitioner at various centres. 303 Dr Singleton gave evidence in a straightforward, genuine and engaging manner. No issues as to her credibility arise. 304 In both of her reports, Dr Singleton concluded to the effect that because of Ms Rossi's mental health symptoms, she did not have adequate capacity to understand, absorb, retain and rationally process information related to the signing of the Deed and the consequence of doing so on 29 October 2008. However, during her oral evidence she sought to amend this conclusion, deleting the reference to not having adequate capacity, and substituting the conclusion that Ms Rossi's mental health symptoms impacted her capacity to understand, absorb, retain and rationally process such information. 305 Dr Singleton refers on a number of occasions in her reports to Ms Rossi's capacity being impaired. She opined that: In retrospect, it is my opinion that Ms Rossi's mental health issues were contributed to significantly by the trauma she experienced through alleged bullying in her workplace which was compounded by the consequent legal process. This resulted in progressive deterioration in her mood, sense of self and previously effective coping strategies resulting in her suicide risk increasing and impairment in her capacity to make informed choices in October 2008. … In summary, it is my opinion, based on my clinical notes from the time and my recollections, that Ms Rossi presented as being increasingly depressed, disorganised and impaired prior to and following the conciliation hearing on 29th October 2008. These symptoms worsened in the days prior to and following the hearing and her signing of the deed of release, to such a point that I believed that she was a high suicide risk. It is my opinion that suicidal ideation, nihilistic thought processes and persistent themes of hopelessness and helplessness impaired her capacity to make rational choices at this time in that she had resigned herself to there being no other option available to her. Given that she was contemplating suicide at the time that the deed was signed, I do not believe that she was able to make reasonable or rational choices or resist any demands or pressure that was placed on her. It is therefore my opinion that Ms Rossi's mental health symptoms including the associated impact on her cognition, [impacted her] capacity to understand, absorb, retain and rationally process information related to the signing of the deed of release and the consequence of doing so, on 29th October 2008. 306 Dr Singleton stated under cross examination that she was trying to look after Ms Rossi's health issues, rather than collecting evidence, and stated that part of her role as a general practitioner was to advocate for her patient. 307 She observed that during her consultations with Ms Rossi, some apparent issues from Ms Rossi's past and present were not discussed, and this was a constraint imposed by Ms Rossi because she feared that records would be created and the subject of subpoenas as a result. However, Dr Singleton maintained that despite such constraint, she considered her own notes to be accurate. 308 Dr Singleton in her reports said that in her opinion the most likely diagnosis to explain Ms Rossi's symptoms was complex PTSD. During cross examination Dr Singleton explained that the term complex PTSD is interchangeable with borderline personality disorder, and the condition is treatable. She acknowledged that the diagnoses was based on her experience as a general practitioner and she would defer to a psychiatrist. 309 Dr Singleton's note of the consultation in the late afternoon of 29 October 2008 says nothing about the signing of the Deed or any self-report of any pressure that was applied with respect to signing the Deed. Dr Singleton's reports of October 2020 refer to Ms Rossi feeling pressured into finalising her legal case with little communication from her legal team, leaving her with inadequate time to assess her opinion. Dr Singleton accepted in cross examination that such information came from Ms Rossi. Dr Singleton assumed those matters for the purpose of her opinion, and considered them in the context of the weeks and months leading up to the relevant dates and how much weight Ms Rossi had placed on the outcome of the litigation. 310 Dr Singleton accepted, having regard to her note of 29 October 2008, that the information about the circumstances of the signing of the Deed may have come from Ms Rossi not on 29 October 2008, but later. Dr Singleton said her predominant focus on that date was Ms Rossi's level of distress and how unwell she was. She accepted that to the extent she ultimately held concerns about Ms Rossi's ability to retain and absorb information associated with the Deed, it was not a concern she held on 28 or 29 October 2008 because her focus then was her mental health for the purpose of an admission to hospital. 311 Dr Singleton did not carry out any capacity testing or capacity assessment at the time. Dr Singleton accepted that she did not know what questions were asked by Ms Rossi in the meeting of 29 October 2008 or what consideration Ms Rossi gave to any advice or documents she received, and explained that she was focused on Ms Rossi's mental health symptoms, and not on any cause of them. She said she was comfortable to attest to the fact that Ms Rossi was unwell at the time, because otherwise she would not have been organising for her admission to a psychiatric hospital the following day, whilst acknowledging that Ms Rossi opted not to be admitted.

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Evaluation of Dr Singleton's evidence 312 Ms Rossi accepted that Dr Parmegiani's evidence is to be preferred over Dr Singleton's, and that at its highest Dr Singleton referred to Ms Rossi's capacity being impaired. 313 Dr Singleton's evidence is valuable in that although she was not present during any of the settlement meetings or conferences, she had contact with Ms Rossi at the time. Her diagnosis of PTSD differed from that of Dr Parmegiani but she identified that Ms Rossi appeared increasingly depressed, disorganised and impaired prior to and after the settlement conference. As at 2008 Dr Singleton was a general practitioner with experience in the area of mental health, and I accept that she would recognise symptoms consistent with a diagnosis of depression. 314 I also take into account and give weight to Dr Singleton's evidence that she was sufficiently concerned about Ms Rossi's mental health on the evening of 28 October 2008 to consider the option of private hospital admission if the conference on 29 October 2008 did not go well, and she also planned to speak to Ms Rossi after that conference. Dr Singleton maintained sufficient concern about her mental health after the final conference to agree to facilitate hospital admission the following day. I accept based on Dr Singleton's file notes that Ms Rossi presented with a level of distress on those occasions, although Dr Singleton did not profess to have a strong independent recollection. 315 I have reservations with respect to Dr Singleton's reports. Her report referred to Ms Rossi 'contemplating suicide at the time that the Deed was signed', but Ms Rossi did not give evidence to that effect. Perhaps in saying this, Dr Singleton was referring more generally to the suicidal ideation she had referred to in her note of 28 October 2008. But suicidal ideation, although deeply concerning, does not necessarily denote incapacity. I also have concerns that Dr Singleton's reports go further than her contemporaneous notes, referring to matters that she conceded she was told by Ms Rossi after the event. For example, as I have said, her note of the 29 October 2008 phone call does not suggest that Ms Rossi said anything to her at the time about any regret about the settlement, any lack of understanding, or any conduct by way of duress or pressure. 316 Although Dr Singleton was aware on 28 October 2008 that Ms Rossi was returning to the settlement conference the following day, she did not conduct any capacity testing or assessment. Nor, does it appear, did she suggest that the meeting perhaps be postponed. This is not to criticise Dr Singleton. She frankly admitted that her concern was with Ms Rossi's mental health generally and she did not at that time hold a concern about her capacity to retain and absorb information associated with the Deed. Her conclusion as to capacity is linked to her overarching concerns about suicidal ideation and the prospect of admission to hospital without assessment of the actual nature of the transaction that Ms Rossi entered into and the extent to which she may have been able to understand the nature and effect of that transaction, even in a heightened emotional state. For example, Dr Singleton accepted that she did not know what advice or information Ms Rossi received at the meetings. 317 In the end I take into account Dr Singleton's evidence that Ms Ross presented as depressed and unwell. She was an important observer at the time, albeit that she was not present at the settlement conferences. I accept based on her evidence that there may have been some limited impairment of Ms Rossi's capacity as a result of the state of her mental health, but this finding does not determine the issue. I prefer the specialised evidence as to capacity of the psychiatrists that is examined below.

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Ms Allan's lay evidence 323 As to Ms Allan's lay evidence, I have referred above to some of the evidence of Ms Allan's interactions with Ms Rossi during October 2008 and November 2008. Further evidence about their interactions is set out in her October 2020 affidavit and her clinical notes from the time. Parts of the October 2020 affidavit were subject to an objection to the effect that whilst Ms Allan could give evidence about what she saw, heard or otherwise perceived, other opinion evidence should not be admitted unless subject to a s 136 limitation that it was not evidence of the truth of what was stated. 324 As is apparent, Ms Allan accepted that she relied on what she was told by Ms Rossi during the course of their counselling relationship about factual events. Therefore, consistent with the approach to other lay evidence, as to Ms Allan's consultation notes, it is appropriate that they be admitted as evidence of matters that Ms Allan was told by Ms Rossi at the consultation, and also where the note refers to an opinion held by Ms Allan at the time, admitted as evidence that she held that opinion. Similarly if a note records an opinion held by Ms Rossi, then it is admitted as evidence that she held that opinion. The notes were not otherwise admissible to prove the underlying facts asserted by Ms Rossi in the notes. Counsel for the respective parties endorsed this approach during the course of the hearing. 325 Ms Allan commenced consulting with Ms Rossi in 2001. From 2002 she has seen Ms Rossi on almost a monthly basis, although during some months more frequently than others. 326 It was apparent that Ms Allan has an ongoing therapeutic relationship with Ms Allan. She had spoken to her as recently as the week before Ms Rossi gave her evidence. 327 Ms Allan referred to three sessions with Ms Rossi during July 2008 and August 2008. Ms Allan said that Ms Rossi recalled and became distressed about events she said happened at Qantas, and that typically her narrative would become incessant, emotional and intense, with events described in detail. Ms Allan's notes recorded her to be depressed, anxious and with symptoms consistent with 'post trauma symptomatology'. Ms Allan recalled that it was her view that Ms Rossi had, in addition to post trauma symptomatology and anxiety, 'depression symptomatology more reflective of a major depression'. She reminded Ms Rossi at that time of hospital psychiatry unit support available to her if she felt she needed support. Ms Allan said that during a session in September 2008 Ms Rossi appeared to her to be overwhelmed and in a very emotional state of mind. 328 Turning to October 2008, it appears that Ms Allan had a consultation with Ms Rossi on 3 October 2008 and a further consultation on 21 October 2008. The consultation on 21 October 2008 is referred to above (at [131]). 329 The next consultation was the phone call of 27 October 2008. The note of that call is reproduced at [166] above. In her affidavit evidence Ms Allan said: On or around 27 October 2008, I had a phone call with Ms Rossi. Fundamentally, my notes show that Ms Rossi stated words to the effect of 'I will have to speak with him [Mr McCristal] before I can make a decision. My history of consulting mental health practitioners, and of my own volition, has been twisted and used indiscriminately. It is as if it's been weaponized to try to discredit my workplace injury. They have changed their assessment of my injury. I keep telling him [Mr McCristal] that he needs to pursue Louise Buchanan's original notes.' 330 Under cross examination, Ms Allan was challenged as to this evidence. It is apparent that the information in the file note was more specific. It included the expression 'accept an offer', the percentage differentials and the expression 'Wednesday: accept offer'. Those words are highly relevant in indicating that Ms Rossi knew the purpose of the settlement meeting and the relevance of an offer. The affidavit evidence does not paint that picture. Ms Allan explained this difference on the basis of the time that had passed and said that the affidavit evidence was 'an accurate sentiment' of how she understood the situation, although Ms Allan also acknowledged that it is possible that '[her] understanding of around that time has become somewhat contaminated by the repeated subjective narrative that [Ms Rossi] has consistently shared with [her]'. In those circumstances I consider the contemporaneous note to be more reliable evidence of the conversation. 331 Ms Allan also recalled having a conversation with Ms Rossi at some point 'around this timeframe' (30 October 2008 or later) in which she raised the prospect of Ms Rossi seeking respite care at a centre referred to as 'Mercy Sister' or 'Grey Sisters'. Ms Allan said that: To the best of my recollection I suggested this option in response to Ms Rossi expressing distress having felt coerced by her lawyers into signing a Deed with Qantas to settle her Workers Compensation Claim 332 Under cross examination, Ms Allan accepted that she did not conduct any assessment of Ms Rossi's capacity on 27, 28 or 29 October 2008. She said she had no need to do so because she understood Ms Rossi was heading to court in November and her lawyer had not requested an evaluation. She accepted that there was nothing in her notes or affidavits that referred to any concern she had in relation to Ms Rossi's capacity at that time, and that she took no protective measures on Ms Rossi's behalf. 333 Ms Allan seemed somewhat reluctant to acknowledge that she knew Ms Rossi was going into a mediation ('I can't say I knew with certainty what was involved'), but she accepted that she spoke to Ms Rossi on 27 October 2008 and knew that she had to make a decision about whether she was going to accept an offer to settle her claim or not. There was this exchange: And so you knew, as at 27 October, that she was - you didn't have concerns, did you, about incapacity to speak to Mr McCristal or to make a decision about whether or not to enter into the deed?---I - I guess I was anticipating that people who were representing her, legally, with full knowledge of her injury or what she was claiming to be her injury, would have - have processes in place that would ensure that she was able to work through decision-making. So you're saying - - -?---She is capable of making decisions. Okay?---She was capable of making decisions, but under duress, with insufficient time, insufficient facts, insufficient time to reflect, insufficient consideration of the ramifications, that is very detrimental. So am I right in then understanding that in answer to the question that I've asked you previously, you accept that, as at 27, 28, 29 and 30 October, you didn't have concerns about her capacity to sign the deed at that time?---I cannot answer that. Well - - -?---I cannot answer that in a black and white way, because I was not there at the three-day hearing. The nature of how relationships and communications and timing and everything else is conducted is - is, like, a critical factor to how it all played out. 334 Ms Allan said that she believes that Ms Rossi was bullied and mistreated by Qantas employees based on Ms Rossi's 'subjective narrative of her experience'. She also believes that Ms Rossi feels further traumatised by her dealings with the legal fraternity. She agreed that Ms Rossi had described her as 'the last one left listening without judgement to her'. Under cross examination Ms Allan said: ---It is, in my therapeutic realm, to believe what clients tell me, with the understanding that it is their subjective experience and it is not an objective part of my job to believe them or not. In a therapeutic sense, yes, they need to be validated, and that is - that is very important, that they are affirmed, so that you can do the psychotherapeutic work. It is not my role to judge their perception at that point. 335 As to her notes, Ms Allan accepted that she did not keep notes in her ordinary manner, but kept them to a minimum, partly at Ms Rossi's request and also in weighing up the impact that note-taking might have on her therapeutic alliance with Ms Rossi. This was a compromise she considered appropriate having regard to what she described as Ms Rossi's distrust as to the use of medical and other notes. She also accepted that Ms Rossi asked to review her consultation notes before they were provided to the Court and requested changes (although changes mainly pertained to details such as dates). 336 The reports prepared by Ms Allan were provided to Ms Rossi in advance, pursuant to a request by Ms Rossi that she consent to any documents Ms Allan proposed to provide to her lawyers. Ms Allan also accepted that she conferred with Ms Rossi about versions of at least one of the reports (although the conferral was said to be limited to factual matters). 337 Ms Allan acknowledged under cross examination that she was prepared to endorse every effort by Ms Rossi to 'receive acknowledgement for what she has suffered'. I add that even from the early days it was apparent that Ms Allan accepted and supported Ms Rossi's claims against Qantas. For example, in support of the conciliation claim in 2006, Ms Allan provided a report that concluded 'I endorse every effort for her to receive acknowledgement for what she has suffered in the event of any absence of appropriate and respectful organisational support'. 338 Although Ms Allan denied that there was a tension between her therapeutic role and her ability to give impartial evidence, I did not consider Ms Allan's evidence to be objective. On occasion she appeared to regulate or qualify her answers by attempting to pre-empt the purpose of questions, which detracted from the process. This was apparent from, for example, an exchange about whether or not Ms Rossi's health had declined since 2008: So am I right in - … - all I'm just asking you is that - whether you say that you consider that Ms Rossi's mental condition has deteriorated since 2008. It doesn't mean that it didn't exist before then. I'm just asking whether, in your view, it has deteriorated since then?---I think the deterioration has been compounded by the protracted legal processes and the nature of interactions in the legal process. That has had an effect. I understand that, but are you saying it has deteriorated since 2008?---I - I say that the context - her physical and mental health under duress - yes. There is this - there is this decline, I think, in her - her - her mental and physical health, but I'm also pointing out the importance of context. Do you understand, though - I'm not asking you to second-guess why I'm asking the questions - that I'm just asking you just a straightforward question, which is do you think, for whatever reason - don't need to explain the reason or otherwise - her health has deteriorated since 2008? I'm assuming that you're saying yes?---I will answer the question as yes, but I don't think it's - if that's helpful to the court, yes. And by, I mean, 'health', of course, I mean mental health?---I understand there are physical health concerns as well, because the two are related, but certainly from what I have observed her overall mental health has deteriorated. 339 In the end, Ms Allan accepted that Ms Rossi's mental condition had progressively deteriorated since 2008, but the manner in which she responded indicated her reluctance to frankly respond to questions asked of her. It seemed to me from this exchange, and others, that Ms Allan was inhibited in answering questions by a concern to continue to protect and endorse the position of Ms Rossi. 340 It follows that I have treated Ms Allan's lay evidence with caution, carefully taking into account that it was highly dependent upon Ms Rossi's self-reporting and that Ms Allan was not an independent or objective witness. That does not mean that I consider she was being less than honest or seeking to mislead in any way. On the contrary, I consider Ms Allan was doing her best to assist the Court, but she was at all times particularly mindful of her understanding of Ms Rossi's mental health issues and the desire to do what she considered to be in Ms Rossi's interests. Nor do I find that the conduct on the part of Ms Allan constituted collusion. 341 In reaching this view as to the limitation on the value and use of Ms Allan's evidence, I do not diminish the importance of the therapeutic relationship between Ms Allan and Ms Rossi. Such a therapeutic relationship may be invaluable in the treatment and management of anxiety, depression and other mental health conditions.

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Ms Allan's expert evidence 342 It is now necessary to say something about the parts of Ms Allan's affidavit evidence that purported to provide expert opinion about Ms Rossi's mental state or capacity as at 29 October 2008, and to address her reports. 343 Qantas did not seek a ruling on admissibility with respect to Ms Allan's opinion evidence but made submissions as to weight. 344 Ms Rossi does not rely upon Ms Allan's opinion for the purpose of the diagnosis of the underlying condition of a major depressive disorder, that being the diagnosis of Dr Parmegiani. Further, in her closing submissions, Ms Rossi referred to Qantas' attack on Ms Allan's evidence, stating: The real point of the Respondent's attack on this evidence is no doubt Ms Allan's view that Ms Rossi did not have capacity. The Court does not need to decide that issue, because the Applicant relies on the expert evidence of Dr Parmegiani. Thus the findings sought by the Respondent at [117] are either ill-conceived or unnecessary. 345 Paragraph 117 of Qantas' submission to which Ms Rossi's written submission referred is a submission about a lack of independence on the part of Ms Allan, having regard to her close working relationship with her. Unquestionably an absence of independence is a matter relevant to the weight that might be given expert evidence. Therefore, it is apparent from Ms Rossi's submission that she does not rely on Ms Allan's opinion as to capacity by way of expert evidence. In any event, in the face of psychiatric evidence from persons who are clearly highly qualified as to questions of capacity, I would have preferred their evidence. 346 I accept that specialist psychologists may in appropriate circumstances provide expert evidence relevant to matters such as cognitive brain processes and capacity. For example, in Dalle-Molle each party relied on evidence from a neuropsychologist on the question of mental capacity. In saying this, I acknowledge that there are authorities to the effect that the field of mental impairment is one of psychiatry rather than psychology: R v Kucma [2005] VSCA 58; (2005) 11 VR 472 at [26]; considered in Flageul v WeDrive Pty Ltd [2020] FCA 1666 at [226]-[228]. In light of Ms Rossi's concession I do not need to consider further Ms Allan's opinions insofar as she purports to opine on capacity. 347 Ms Allan's expertise as a psychologist is at a general level. That does not mean that she is not qualified to comment on behaviours that she observed, bringing to bear her experience and training. However, whilst I will admit Ms Allan's reports, as Ms Rossi still sought to rely on them, I give them no weight. The same comment applies to those parts of her second affidavit that purport to provide an opinion as to Ms Rossi's capacity (paras 49-52 of the affidavit, with para 48 admitted only on the basis that it reflects Ms Allan's observations). 348 Turning to the evidence, in her 22 October 2020 affidavit, Ms Allan states under the heading 'Capacity at the time of entering the Deed' that her observations, notes and recollections around 2007 and for the duration of around 2008, that Ms Rossi reflect that Ms Rossi was severely depressed and anxious. 349 I accept that as her treating psychologist Ms Allan was well placed to comment on Ms Rossi's level of anxiety and was able to recognise symptoms of depression. She was able to give evidence to the effect that Ms Rossi's mental health issues were long-standing. 350 Ms Allan does not refer to any concern about Ms Rossi's capacity to make decisions or her capacity to understand legal or other processes at that time. 351 I do not consider anything in Ms Allan's first report assists in determining the question of capacity that arises in this proceeding. The report was apparently prepared for a different purpose. Ms Allan gives her opinion as to Ms Rossi's diagnosis as at January 2020, and is asked whether she 'currently has, or has at any time had, any form of psychological or psychiatric condition' and a range of other questions that are not directly linked to capacity as at October 2008. 352 Ms Allan refers to matters she has been told about those events by Ms Rossi in passing, but they are not the focus of the report. The report does not untangle references to psychological or psychiatric conditions. Ms Allan is not qualified to give an opinion as to any psychiatric condition or make a medical diagnosis. In any event, the report is of too general a nature to provide assistance on the question of Ms Rossi's capacity as at October 2008. 353 The second report purports to address 'neurobiology and cognition' and is premised on an observation that 'the brains of people who have experienced the trauma of persistent bullying behaviours are likely to be physically and cognitively altered'. The source of knowledge for that assertion is not disclosed and no specialised knowledge is revealed. Ms Allan then answers a series of questions about how certain events impacted Ms Rossi's capacity to participate in the decision on 29 October 2008, including but not limited to her ability to 'understand with assistance and explanation from her lawyers issues that might arise from self-management of her financial affairs, including the disposition of settlement monies referred to in the Deed'. 354 The relevance of that question and answer to the capacity test as explained in Gibbons v Wright and in the context of this proceeding is not apparent. Rather, Ms Allan appears to have been asked to opine on capacity as if the question of capacity fell to be considered in the context of managing a broad range of matters relevant to a person's affairs, as discussed in Erdogan. In any event, the difficulty is that all questions being asked of Ms Allan and referred to in the report specifically seek her opinion as to mental capacity, and so for the reasons given above, I would give the second report no weight. 355 The third report was provided only in order to answer a question asked of Ms Allan as to when she was first aware that Ms Rossi had been prescribed antidepressants. The report does not add anything of substance.

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Dr Parmegiani 356 As discussed in Dasreef at [37], when a specialist medical practitioner expresses a diagnostic opinion in his or her relevant field of specialisation it will not be difficult to discern that specialised knowledge is applied, once the witness has described his or her qualifications and experience, and has identified the subject matter about which the opinion is proffered. In this case it is apparent that both Dr Parmigiana and Dr Lee are eminently qualified to give opinions based on their specialised knowledge about capacity, including where there is a diagnosed mental condition. However, as made clear in Guthrie v Spence, it is for the judge to decide the issue of capacity having regard to the totality of the evidence. 357 Dr Parmegiani provided five reports. In his first, dated 21 October 2020, he referred to a 2.5 hour assessment session that he conducted with Ms Rossi by Zoom. He provided supplementary reports dated 27 October 2020, 4 November 2020, 22 February 2021 (responding to Dr Lee's report) and 26 February 2021. 358 In his first report, Dr Parmegiani relevantly concluded: In 2008 Ms Rossi entered a deed of release settling a workers' compensation claim, after being pressured to do so by her legal representatives. I believe that in 2008 she was still suffering from moderate to severe symptoms of depression, and that therefore at the time she was a 'handicapped person' within the meaning of the then Order 15 of the then Country County Court Rules of Procedure in Civil Proceedings 1999 (Vic). It is my opinion that in signing the deed she was unable to clearly understand the implications of doing so, or to argue her case effectively in opposition to the pressure exerted upon her to sign the deed by her then legal representatives. … With regards to your question (e) page 7 of your letter of instructions [see (E) extracted below], assuming that the matters set out in Ms Rossi's affidavit are true and correct, it is my opinion that as of 29 October 2008, Ms Rossi was suffering from symptoms of a Major Depressive Disorder that made it very difficult for her to understand, absorb, retain information and rationally process advice provided by her lawyers in relation to the deed. While her ability to appreciate or recall relevant factors may have been preserved to some extent, I believe that her ability to appreciate the consequences of her agreement to sign the deed and to reason and make rational decisions was impaired by her psychiatric condition. I believe that she would have been able to understand the general nature and effect of the deed, but that she felt under duress to comply with the instructions. In summary, I believe that Ms Rossi had some limited ability to understand the nature and the consequences of the deed, but lacked the clear focus and fortitude required in such circumstances to adequately instruct her lawyers, to discuss the possible consequences of the deed, and to assertively put forward her objections. 359 In his second report, Dr Parmegiani provided further answers to the questions asked of him by Ms Rossi's solicitors. The extract below is regrettably lengthy, but it is important in that it reveals the assumptions made by Dr Parmegiani in forming his opinion and because Dr Parmegiani considered that at least 'in general terms Ms Rossi was able to understand the general nature and the effect of the deed' (see emphasised passages). The further questions were asked and answered as follows: Assuming the matters set out in Ms Rossi's affidavit are true and correct, your opinion as to how and to what extent, if at all, Ms Rossi's disabilities impacted on her ability to participate in the decision to settle her workers' compensation claim as at 29 October 2008 including but not limited to her capacity: (A) To understand, absorb, retain information and rationally process advice provided by her lawyers in relation to the deed. The contemporary information, including the medicolegal reports of two psychiatrists, indicate that Ms Rossi at the time was suffering from a diagnosis of Major Depressive Disorder or Adjustment Disorder with Depressed Mood. I also take into consideration the reports of her then treating psychologist Ms Amanda Allan, and the affidavits of Ms Rossi, as well as the information I gathered at my own clinical assessment. It is my opinion that, in view of her psychiatric diagnosis, Ms Rossi was experiencing a severe disorder of mood, which in my experience can significantly impact adversely the person's ability to reason clearly, to retain information, and to process what information is retained, including the advice provided by her lawyers in relation to the deed. It is therefore my opinion, that at the time her capacity to do so was significantly impaired. (B) To appreciate or recall relevant facts and understand available alternatives to executing the deed. For the same reasons above, given the severe disturbance of mood and its adverse impact on Ms Rossi's cognitive abilities, including attention, concentration, memory and lucid thinking, I believe that she was not in a reasonable position to appreciate or recall the relevant facts and to understand the available alternatives to executing the deed. (C) To appreciate consequences, including balancing risks and needs, in relation to entering into the deed. For the reasons outlined above, it is my opinion that given her then-current psychiatric condition Ms Rossi was unable to evaluate her alternatives appropriately, to appreciate the consequences of making the decisions recommended by her legal counsel, or to consider risks and consequences of entering into the deed. (D) To reason and make rational decisions including about whether to enter into the deed. While a Major Depressive Disorder's main effect is a severe disturbance of mood, the psychiatric condition also affects to considerable extent a person's ability to reason and to make rational decisions. Ultimately, she reported that her final acceptance of the instructions to sign the deed was based upon the impression conveyed to her by her legal counsel that if she were not to do so she would incur significant legal fees, which at the time she could not afford. It is my opinion that in such circumstances Ms Rossi felt overwhelmed by the situation, and was unable to reason and to make rational decisions. (E) To understand the general nature and the effect of the deed. Based on her recollection, and the contemporary reports, I believe that at least in general terms Ms Rossi was able to understand the general nature and the effect of the deed. (F) To understand the advice given by her lawyers, regarding the nature of the deed, its purpose, its possible consequences (including not being able to bring any other claims), and the risks in terms of legal costs. Ms Rossi was generally able to understand the advice given by her lawyers regarding the nature of the deed and its purpose, including its possible consequences and especially the risks in terms of legal costs. At my own clinical assessment in October 2020, she could clearly recall the details of her meeting with her legal counsel, and the matters that were discussed with her. (G) To give instructions to her lawyers, including whether to agree or to disagree with settlement terms. It is my opinion that, because of her then-current psychiatric condition of Major Depressive Disorder, her mood state and cognitive abilities were adversely affected to the point where she was unable to give clear instructions to her lawyers, specifically whether to agree or disagreement with the settlements terms. (H) To understand what she was required to do as part of the settlement process, including the effect of signing the deed. At a basic level, it is my opinion that Ms Rossi did understand what she was required to do as part of the settlement process including the effect of signing the deed. (I) To understand, with the assistance of explanation from lawyers, of the issues in legal proceedings on which a consent or decision may be required. I believe that at the time Ms Rossi signed the deed settling her workers' compensation claim in October 2008 she had some ability to understand, with the assistance of explanation from lawyers, the issues in legal proceedings on which her consent or decision may be required. It is however also my opinion, as outlined above, that her mood/emotional state at the time made it possible for her to be easily overwhelmed by the situation, and consequently to become unable to consider all matters at hand, unless she was given enough time and support to do so. Given her description of the situation as it unfolded, when she signed the deed, it is my opinion that this did not occur. (J) To participate in this decision in the circumstances described in her affidavit, including but not limited to attending meetings and making decisions within the timeframes imposed. It is my clinical opinion, based on review of the contemporary documents, subsequent reports and my own examination conducted in October 2020, that because of her mood disorder Ms Rossi would have had limited ability to participate in the decision, especially in the circumstances described in her affidavit. Ms Rossi clearly recalled feeling overwhelmed by the occasion, and having in her own mind no choice but to sign the deed when placed under pressure to do so. In many ways, she described a situation not dissimilar to her previous experiences at work, where she had felt belittled and harassed by people in position of power, and had been unable to assert herself. 360 In the report of 4 November 2020, Dr Parmegiani responded to a request by Ms Rossi's solicitors to further consider his answers having regard to particular paragraphs of Ms Rossi's affidavits. He said the following: When commenting about Ms Rossi's ability to fully understand and appreciate the nature of the deed she was asked to sign in 2008, I stated in my report questions (E), (F), and (H), that Ms Rossi was, at a basic level, able to understand the matters that were presented to her. By stating that, I acknowledge that at that time Ms Rossi was alert and conscious, and was not affected by what is referred to in psychiatric terms as 'formal thought disorder,' which is an impairment of thinking usually found in psychotic conditions, such as Schizophrenia, Bipolar Disorder, or Major Depression with Psychotic Features. In that respect, I believe that at the time in question Ms Rossi was alert, conscious, and able to comprehend language. It is however my contention that because of the severe symptoms of mood disorder, which included depressed mood and overwhelming anxiety, Ms Rossi would not have been able to carefully consider the matters that were put before her, and to come to reasoned and logical conclusions of her own accord. … In summary, while I believe that Ms Rossi was conscious, alert and able to hear what was being proposed to her, it is my opinion that the severely disturbed emotional state, caused by her then psychiatric condition of Major Depressive Disorder, made it impossible for her to carefully consider the matters at hand or to make calm and well-reasoned judgements about them. 361 In his final report, Dr Parmegiani said: Overall, having considered my clinical findings, my own review of the documents concerned, my interview of Ms Rossi and further review of Dr Lee's report, I am not satisfied that Ms Rossi at the time of signing the deed fully understood the issues, registered and was able to articulate the consequences of not signing. 362 A number of important points came out of cross examination: (1) Dr Parmegiani's diagnosis in 2020 was a current diagnosis, based on her presentation and guided by her history, and he accepted it is most accurate as a current assessment. (2) His reports were based 'in good part' on his clinical assessment and what Ms Rossi told him. (3) He considered the assessment that he had undertaken with Ms Rossi was important because it had been a long consultation taking into account 'her emotional [lability] and tendency to lose track of things', and he found that instrumental in forming his opinion (Dr Parmegiani refers in his 22 February 2021 report to emotional lability/arousal). He considered that clinically she would 'not have been too dissimilar' at the time of the events, having regard to her ongoing, untreated major depressive disorder. He considered the diagnosis of persistent depressive disorder had remained stable for the last 13 years at least, although there may have been fluctuations, 'as is not uncommonly the case in depression'. He found her to be anxious with him despite him being sympathetic, and assumed that she would have been more distressed in a situation that was more confrontational. (4) Dr Parmegiani also took into account the documents provided to him, which included Ms Rossi's affidavits, medical and psychiatric reports. He took into account the factual matters that Ms Rossi told him about what she did, observed or felt. He did not see any evidence from others who participated in the conferences. (5) Dr Parmegiani assumed that the circumstances in which the Deed were signed included that Ms Rossi felt overwhelmed and paralysed (as her affidavit said that); that the solicitors had told her she was lying; that the reports were against her; and that if she didn't sign the Deed she would be up for several hundred thousand dollars, at a time when she was receiving the disability pension. (6) He proffered that one of the reasons he concluded (at (G) in the second report) that Ms Rossi was unable to give clear instructions was based on Ms Rossi reporting that when she tried to speak to her lawyers her words came out 'all jumbled and they couldn't understand her', and he said that jumbled meant 'to the point of gibberish, when nothing makes sense', and that this would give rise to quite serious questions about one's cognitive ability. (7) The passage of time (13 years) was relevant. Any test carried out at the time (29 October 2008) would have been much more conclusive, but in this case it was necessary to rely on reconstruction based on clinical assessment and a review of the documents. (8) The diagnosis and symptoms could affect Ms Rossi's capacity - and he 'could even stick [his] neck out and say they most probably did'. 363 Dr Parmegiani agreed that he could not give conclusive evidence as to Ms Rossi's state of mind on the day of signing the Deed, and said that nobody would with absolute certainty unless they were there and assessed it at the time. 364 He maintained under cross examination the view that in general terms Ms Rossi was able to understand the general nature and effect of the Deed, and that she was generally able to understand any advice given by her lawyers regarding the nature of the Deed and its purpose, including its possible consequences and especially the risks in terms of legal costs. When taken to his conclusion in the supplementary report of 4 November 2020 (see [360] above), he agreed that he was not saying it was impossible for Ms Rossi to consider the matters at hand, it was just impossible for her to carefully consider the matters at hand; and that he was not saying it was impossible for Ms Rossi to make judgements about the matters at hand, but, rather, to make reasoned ones. 365 Dr Parmegiani acknowledged that a 'good part of that opinion' in his first report to the effect that Ms Rossi felt 'under duress to comply with instructions' (see [358] above) was based on the circumstances of signing as told to him by Ms Rossi. 366 When taken to the final report and the extract above (at [361]), Dr Parmegiani confirmed that the reference to Ms Rossi not being able to articulate the consequences was a reference to the report that Ms Rossi herself had given to him; that the reference to 'fully understood the reasons' meant everything that could have been relevant to her reasons; that he remained of the view that Ms Rossi was able to understand the general nature and effect of the Deed and was able to understand the advice given by her lawyers regarding the nature of the Deed, its purpose and the consequence and risks; and that it was not that she could not understand the Deed, but that her emotional state was such that she believed that she didn't have an alternative but to do so. 367 I accept, having regard to Dr Parmegiani's diagnosis and his assessment of the other medical evidence provided to him, that Ms Rossi had at the relevant time and continues to suffer from symptoms of a major depressive disorder (this does not mean that I accept that the symptoms or effects of the disorder have been consistent or constant since pre-2008 up to and including the time of his assessment in 2020, and I will return to this). 368 Regardless of the diagnosis, his opinion with respect to Ms Rossi's capacity must be considered taking into account the findings of fact that I have made, and a number of other matters. 369 Relevantly, I have found that there were no outward signs of distress of a level which caused concern to Mr McCristal or Mr Hutchinson, an experienced solicitor and barrister respectively, on 27 October 2008 when a settlement offer was made. I have not been persuaded that Ms Rossi spoke in gibberish or could not be understood, a matter upon which Dr Parmegiani placed considerable weight. That is not to say there were no signs of emotion. Mr Hutchison said she was upset, but put it no higher than that. Nor were there outward signs of distress of a level which caused concern to an experienced solicitor and barrister on 29 October 2008 about Ms Rossi's understanding of the nature and effect of the terms of the settlement. Again, that is not to say there were no signs of emotion. Mr Hutchinson was able to say that Ms Rossi was disappointed. 370 Although Dr Parmegiani proceeded on the basis that Ms Rossi did not have the confidence to put forward her views on 29 October 2008, I have found that she was able to ask questions, pointed out a number of difficulties with the terms of the documents, recalled specific matters such as reference to a serious injury certificate and Medicare liabilities, and made it clear to Mr Hutchinson that she had different views about her case. I cannot properly infer in those circumstances that Ms Rossi was restricted in putting forward her views. 371 As to information discussed at the settlement, Mr Hutchison had told Ms Rossi she did not have a strong case. Mr McCristal read the various documents to Ms Rossi at the conference, and they were not particularly lengthy. The Deed expressly referred to the release provided by Ms Rossi extending to a release of all claims, actions, suits, costs or demand at law, in equity or under statute arising out of or relating to the course of Ms Rossi's employment at Qantas. 372 I have accepted that Mr McCristal also explained to Ms Rossi the mechanism by which the settlement was to work. 373 I have not found that there was conduct on the part of Mr McCristal or Mr Hutchinson that might constitute 'duress' or undue pressure to sign. The absence of objective evidence to support any such inference does not mean that Ms Rossi did not feel that she was under duress, but it sheds some light on the reliability of and credibility of that evidence. I have found that Ms Rossi's evidence as to events at the settlement conference was unreliable in part. 374 All of these matters have an effect on the weight I can properly accord to Dr Parmegiani's opinion, because he accepted and took into account what was reported to him by Ms Rossi about the settlement conference in 2008 in forming his opinion in 2020. In particular, his assumptions and acceptance of Ms Rossi's descriptions of her feelings and events (including speaking gibberish) formed the basis for his purported opinions as to her subjective state of mind at particular times, as did in large part his examination of her. Dr Parmegiani's opinions as to her subjective state of mind must be treated with considerable circumspection. I give those opinions no real weight. 375 Dr Parmegiani accepted that his examination of Ms Rossi was instrumental to his opinions, and that he assumed that her current mental state was reflective of her mental state in 2008. Other than referring to a consistent diagnosis over time, it was unclear why it was appropriate to assume that her symptoms, manner and emotional response to circumstances would be consistent and not fluctuate at any time. Furthermore, there was evidence of deterioration in Ms Rossi's mental state since 2008. Ms Allan suggested this (see [338] above). Ms Rossi also said in her October 2020 affidavit that she had 'ruminating thoughts, reliving distressing memories of the traumatic events I was subject to at both Qantas and Maurice Blackburn', suggesting that the experience in 2008 with Maurice Blackburn had added to her distress. 376 Regardless of those issues, I accept that Dr Parmegiani was qualified to say that in his opinion Ms Rossi suffered a major depressive disorder and that someone with her symptoms was or was not likely to be able to understand transactions of the nature of the Deed if explained to them. And indeed, whilst the iterations of his reports, following further questions from Ms Rossi's lawyers, tended to descend into a dissection of the purport of the transaction in a manner not contemplated in Gibbons v Wright or Hanna v Raoul, under cross examination Dr Parmegiani accepted that in general terms Ms Rossi was able to understand the general nature and effect of the Deed; and that she was generally able to understand any advice given by her lawyers regarding the nature of the Deed and its purpose, including its possible consequences and especially the risks in terms of legal costs. He accepted under cross examination that his opinion as contained in his first report had not been changed by his later reports. His opinion remained that Ms Rossi did have the capacity to understand the Deed.

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Dr Lee 377 Dr Lee provided a report dated 25 November 2020. He was also provided with material including Ms Rossi's affidavits, Dr Singleton's records and reports, Ms Allan's report and affidavit, Dr Gill's reports and Dr Parmegiani's first three reports. 378 Dr Lee was asked to answer the following questions: (a) What is the specialised knowledge based on your training, study or experience that you have which allows you to opine upon the issue of whether a person has mental capacity to engage in certain conduct or to understand certain matters? (b) Based on your expertise, how is the issue of whether a person has mental capacity to engage in certain conduct or to understand certain matters assessed, determined or otherwise ascertained from a medical perspective? (c) Based on your expertise, and on the material available to you, are you able to give an opinion as to whether Ms Rossi was able to understand the effect, or the general nature, of the Deed at the time of entering into the Deed if its effect, or general nature, had been explained to her? (d) If so, based on your expertise, and on the material available to you, was Ms Rossi able to understand the effect, or general nature, of the Deed at the time of entering into the Deed if its effect, or general nature, had been explained to her? 379 Before addressing the report in more detail I wish to briefly dispel one of the objections raised by Ms Rossi, which to my mind was one of form over substance. It is true, as counsel submitted, that Dr Lee did not use paragraph numbering and that his style of writing involved setting out a statement (usually an extract of evidence) and then commenting upon it, rather than strictly following the format suggested by GPN-EXPT. I did not find that style inappropriate or such as to diminish the weight that should be afforded to it. With careful reading, and reading the report as a whole, I had no difficulty in understanding the nature and content of Dr Lee's report, and in substance it addressed the matters required by GPN-EXPT. 380 Dr Lee stated that from a medical perspective, mental capacity is best assessed and determined at the time of the relevant event. He observed that it can otherwise be determined by the review of contemporaneous records, acknowledging that such data may be less direct and subject to confirmation bias and interpretation. Dr Lee did not consider it useful to reconstruct Ms Ross's capacity on 29 October 2008 from her present day recall (2020) 'as memory is reconstructive, frequently inaccurate and subject to retrospective/hindsight bias'. For this reason he did not consider there was value in meeting with and assessing Ms Rossi at the time of preparing his report. 381 Dr Lee said that a psychiatric diagnosis such as major depression does not necessarily indicate that a person lacked capacity to understand certain matters at the time they engaged in conduct. Additional information would ordinarily be required. Impairments and disabilities vary widely within each diagnostic category. An adequate assessment would require consideration of history, symptoms that may interfere with cognition and a mental state examination that took account of general attributes such as intellect and personality, speech form, cognition (concentration, orientation, short term memory), affect and mood (objective presentation and insight). Both corroborative and non-corroborative data about symptoms and impairment may be relevant, and psychometric testing may also assist. 382 Clearly in this case no such assessment was undertaken at the relevant time. Dr Lee took the approach that based on his expertise he was able to give a qualified opinion, limited in that he did not assess her on 29 October 2008, and noting that some of the documents provided to him may be affected by bias over time. He proceeded on the basis (as instructed) of assuming the correctness of Ms Rossi's affidavits, but not the correctness or conclusiveness of her assertions as to capacity to understand the effect or general nature of the Deed. 383 Dr Lee reviewed the materials before him, commenting to the following effect (and I note that some of these matters are drawn from Qantas' closing submissions, but I consider they fairly reflect Dr Lee's report): (a) Ms Rossi's references to inaccuracies that she perceived in the medical reports of Dr Gill 27 October 2008 is indicative of cognitive capacity and judgement; (b) Ms Rossi's ability to recall significant details, and the fact that her complaints relate mostly to a lack of explanation and not being listened to, are matters which suggest that she most likely did have capacity to understand; (c) Ms Rossi indicated that she understood issues as demonstrated by her assertion that what her lawyers were doing to her was not right, and she registered and was able to articulate consequences of not signing the Deed as relayed to her by Mr McCristal during the phone call of 27 October 2008; (d) Ms Rossi was able to recall that what Mr McCristal was saying to her about not being able to prove negligence, and that a serious injury certificate for pain and suffering was inconsistent with what he had previously advised her, and reasoned that the inconsistency was confusing; (e) her statement 'This is not right' suggests that she understood the implications of signing the Deed, but signed under protest; (f) her statement that she was consumed by the consequences if she did not sign indicates she had the capacity of understanding the consequences of not signing; (g) while she asserted that she was upset, overwhelmed and could not understand or rationally consider anything that was being said or how this could be happening, her preceding statements indicate that she was registering what was happening, recognised errors and inconsistencies, and attempted to express disagreement, which do not support her contention that she was not in her right mind and could not rationalise anything that was being said; (h) her distress in the period leading up to the signing of the Deed as recorded in Dr Singleton's notes for 24 September 2008 suggests a process of reasoning where she became distressed as she realised that her medical notes did not support her case, and indicates cognitive capacity despite distress; and (i) Dr Singleton's notes of 28 October 2008 demonstrate capacity to understand and explain why Ms Rossi considered the settlement sum to be pitiful. 384 Dr Lee also observed in his report that if Ms Rossi had been 'overwhelmed', one would not expect her to be able to register and record as much detail as is provided. He said that he considered that the presence of depression does not necessarily cause cognitive problems to the extent that she would have lacked capacity, and the impression he derived from her affidavits was of someone who did not lack confidence in confronting her lawyers with her view of her situation. 385 Dr Lee concluded that from his review of her records, and her affidavits, she appeared to have been able to consider matters put to her, as for example, she understood that her pre-injury records were deleterious to her case, but had difficulty accepting their consequences. 386 Dr Lee's said that the preponderance of Ms Rossi's statements indicate that 'on the balance of probabilities' Ms Rossi understood that adverse consequences of her previous psychiatric records on her claim with Qantas, and registered that if she did not sign the Deed there would be adverse consequences, likely demonstrating capacity. He concluded by stating that in his opinion, on the balance of probabilities, Ms Rossi had mental capacity to understand the effects or general nature of the Deed at the time of entering into it if its effect or general nature had been explained to her. 387 Under cross examination Dr Lee acknowledged that there had been a longstanding diagnosis of a major depressive disorder, and that her capacity was said to be impaired by the fact of that disorder. In response to questions about whether anxiety can impact cognition, he was guarded, in that he considered people who have anxiety do not necessarily have impaired cognition -some degree of anxiety can improve cognition - but he accepted that there may be some cognitive dysfunction with extremely severe anxiety, acknowledging the importance of context. He also accepted that types of depression can fluctuate according to the situation. 388 Ms Rossi filed an eleven page submission objecting to the entirety of Dr Lee's report, challenging the nature of the questions, and alleging an absence of reasoning or disclosure of the facts relied upon. A schedule was included with particular objections relating to 37 paragraphs. It is apparent that considerable work was undertaken to prepare this document, but I do not consider it necessary or productive to address each of the objections. In Matthews v SPI Electrical (Ruling No 38) [2014] VSC 102 Forrest J commented on the unproductive nature of a microscopic examination: [33] … in its written submissions, SPI has undertaken an excruciatingly detailed analysis of Dr Hastings' reports and identified a large number of passages that it says should not be admitted. Ultimately, I think this analysis is distracting and unhelpful. For a court to undertake the same task, and then to undertake the correlative task of determining whether those statements can be unbound, is unthinkable - at this stage of a trial of this size or, indeed, in any trial. Rather, the exercise that I suggest would apply in most cases is this: examine the report as a whole and determine whether the reader can sensibly distinguish between assumed facts and the expression of opinion based on the witness' expertise. 389 I will follow this approach with respect to Dr Lee's report. 390 It is apparent that the questions asked of Dr Lee were formulated having regard to Gibbons v Wright and accord with the approach adopted in Hanna v Raoul and A v N discussed above. 391 Read as a whole, I have no difficulty in concluding that the report is admissible. 392 Dr Lee identifies matters relevant to an assessment from a psychiatric perspective. He explains why it is appropriate (where possible) to assess capacity at the relevant time. He explains that as he was unable to do that, his opinion is qualified. Dr Lee sets out his views regarding the assessment of capacity, followed by his analyses of the material provided to him which he has considered relevant, and explains what he draws from those materials for the purpose of forming his opinion. In my view Dr Lee has identified the assumed facts and explained how his opinion results from an application of his experience. 393 I accept the submission that on occasion Dr Lee tended towards legal conclusion (by reference to a legal authority and by use of the expression 'on balance of probabilities'), but that does not colour his report from my perspective. I have ignored the reference to the authority, and take his use of the expression 'on balance of probabilities' to mean no more than reflecting that he considered it likely, or more probable than not, that Ms Rossi had the mental capacity to understand the effects or general nature of the Deed at the time of entering into it, if its effect or general nature had been explained to her.

[54]

PART H - CONCLUSION 394 As I said at the start, the question of capacity in this case has not been an easy one. I accept, having regard to the medical evidence and the observations of Ms Allan, that as at 29 October 2008, Ms Rossi had a major depressive disorder, but that does not answer the question. 395 In the end, the focus must be on the application of the appropriate test for capacity having regard to the principles. It is to be recalled that in Gibbons v Wright the High Court addressed the question of capacity by asking whether the sisters concerned had been capable of understanding at least the general purport of the relevant instrument 'if the matter had been explained to them' (at 438). That explanation would be sufficient if it enables the person to understand the general purport of the transaction: Hanna v Raoul at [54], [161]. 396 Having regard to the instrument in this case and the nature of a compromise, I have proceeded on the basis that it is sufficient that Ms Rossi had capacity to understand something of her prospects of success, that any claims against Qantas would be resolved and come to an end if a settlement was achieved, that there would be no necessity for a trial, and that she would be paid the relevant sums had such an explanation been given to her (see [71] above). The terms of the Deed were not unduly complex. 397 Some of the evidence and submissions as to alleged duress by Mr McCristal and Mr Hutchinson and the complaints about Mr McCristal's conduct and advice had the tendency to divert attention from that central test. 398 It is not necessary to descend into an analysis of whether Ms Rossi had the capacity to understand each and every term of the Deed, the basis for the conflicting medical reports or the range of all possible alternative settlements or pathways forward. To do so imposes too high a standard of what is required for the purpose of determining capacity. To do so does not answer the question of whether Ms Rossi had the capacity to understand the broad operation or general purport of the compromise reflected by the Deed. 399 The fact that the settlement was objectively a good one is not a persuasive factor. A person with capacity is entitled to accept or reject a good offer. The rejection of a good offer might have some relevance in assessing capacity in a particular case, but it is not to the point in this case. 400 Ms Rossi understood from 9 October 2008 and throughout the period 27 to 29 October 2008 that the purpose of the settlement meeting was to try to mediate and settle her dispute with Qantas prior to trial. It had no other purpose. She had previously been involved in an unsuccessful conciliation. She had made clear to Ms Allan and Dr Singleton that she was attending a mediation or settlement conference. 401 I have had regard to Ms Rossi's evidence about the events on 27 October 2008, together with that of Mr McCristal and Mr Hutchinson, as the only observers who gave evidence. I have taken into account Ms Rossi's evidence about her state of mind at the time. I have no difficulty accepting that she felt upset and anxious, and angry because, as events had played out, her prospects of success had diminished with the disclosure to Dr Gill about her earlier psychiatric history. However, I am not satisfied that her state of mind was such that she was or felt paralysed, overwhelmed or in a black hole (words I understand from her evidence to mean that she could not follow what was happening or speak up), or otherwise was unable to comprehend what was happening as events unfolded on that day. 402 Ms Rossi was sufficiently engaged on 27 October 2009 to identify the absence of references to Ms Buchanan's notes in the medical reports, identify that Dr Gill had revised his opinion as to the level of her impairment caused by her work (including specific percentages) and understand why those figures had changed. She understood that she had received an initial settlement offer of $50,000. She knew she had to come back to the mediation on 29 October 2008. She knew there was an offer that she had to consider. Whatever state of anxiety or distress she was in, she was able to report precise information about Dr Gill's report, the offer and the absence of Ms Buchanan's notes to Ms Allan that evening. 403 On 28 October 2008 Ms Rossi understood enough about the proposed settlement to know and reason that the sum offered was 'pitiful', and a clause was proposed purporting to prevent her from discussing her experiences at Qantas. She was able to report those matters to Dr Singleton. Dr Singleton knew Ms Rossi had received an offer and that there was to be a further discussion the next day. Ms Rossi was able to go to an internet cafe and read Ms Buchanan's notes, and pick up discrepancies in them. 404 It must have been apparent to each of Ms Allan and Dr Singleton by the end of 28 October 2009 that Ms Rossi may be required to make decisions at the 29 October 2008 settlement meeting. Neither Ms Allan nor Dr Singleton considered by that time whether Ms Rossi's mental capacity might be compromised, despite their communications with her at that time, and despite knowing that she was involved in making a decision about an offer. Although Dr Singleton discussed private hospital admission, it was not on the basis of any immediate admission, but on the basis that she would see what happened at the meeting on 29 October 2008. I do not suggest that the conduct of Ms Allan or Dr Singleton is decisive. That they did not consider or identify an issue of capacity does not establish that Ms Rossi had capacity. It does, however, suggest that whatever symptoms Ms Rossi was displaying and discussing with two professional persons used to dealing with mental health issues were not such as to raise alarm bells about Ms Rossi's decision making capacity at the pending reconvened settlement conference. 405 Ms Rossi attended the conference on 29 October 2008 armed with the knowledge that I have already described. 406 Ms Rossi was again upset and anxious at the meeting of 29 October 2008. Part of her sense of distress was fuelled by her perception that she was being blamed for misleading Dr Gill. She was unable to persuade her legal advisers about her view as to prospects, and there remained a difference between their respective views. Ms Rossi had a different view of her prospects of success but was on notice of the costs risk if she proceeded and did not succeed. The Your Claim letter, which referred to difficulties in her claim, was read to her. She understood that the offer was increased from $50,000 to $75,000. The Terms of Settlement and the Deed were read to her. She discerned the contradiction in terms between the Your Claim letter and the Deed. I accept that Mr McCristal also explained the Deed to her. As to the reading of the Deed and the explanation, the release was expressly a release of all claims she might have against Qantas. I infer Mr McCristal must have referred to it, as it was read out. I again take into account that the mechanism by which the settlement was to be effected was not complex. On Ms Rossi's case, she recalls precisely the manner in which documents were held by Mr McCristal and not passed to her. She recalls that she expressed some emotion. She noted with Mr McCristal the restriction on being able to talk about the settlement with her family. She took into account the costs consequences if she did not sign. I also accept that the settlement conference was an environment where Rossi felt under some pressure, being a situation where an offer was being discussed and a decision was expected, whether it be acceptance or rejection of the offer. Such is the nature of a mediation, settlement or conciliation conference. 407 However, there was no outward manifestation to Mr McCristal or Mr Hutchinson at the settlement conferences that Ms Rossi had a difficulty with communicating or with dealing with or understanding the compromise. Mr McCristal's and Mr Hutchinson's evidence was to the effect that nothing had occurred at the settlement meeting that caused them to form the belief that Ms Rossi was not competent, did not provide instructions, did not understand the transaction or did not have the capacity to enter into the Deed. They were both present when she signed the Deed. I am unable to reject their evidence. To do so would be to infer that they held concerns but were prepared to proceed regardless or that they were insufficiently focussed to notice any issues. There is insufficient evidentiary basis to draw either inference. 408 I place significant weight on Ms Rossi's level of engagement in the settlement process. The matters to which I have referred indicate an understanding of the implications of signing the Deed, that she could reason about inconsistencies, that she was able to indicate disagreement, that she was registering what was happening at the meeting, and that even in circumstances where she felt distress, anxiety and a degree of pressure, she was able to do those things. Despite Ms Rossi's contention that she was pressured by a short time frame, the matters I have referred to played out within the time frame of the meeting, and as I have said, the settlement transaction itself was not complex. 409 I do not accept Ms Rossi' submission that the fact that she asked questions on 29 October 2009 about the terms was indicative of a lack of capacity. Rather, it disclosed reasoning and inquiry. 410 Nor has Ms Rossi persuaded me, having regard to the burden of proof, that despite her general engagement in the process to which I have referred at the 29 October 2008 meeting, at the precise time that she signed the Deed she was in a different state; a state where she perceived that she was under duress, that such perception denied her capacity, that she was unable to think properly and was robbed of autonomy with respect to the Deed. Ms Rossi placed considerable store by analogy on the decision in Murphy v Doman as an example where changes in capacity might be observed within the space of a number of days. So much can be accepted. Potentially, depending on the diagnosis, I presume there may be fluctuations in capacity even within the one day. However, Ms Rossi has not persuaded me that her capacity markedly diminished in the limited period between the discussions with Mr McCristal and Mr Hutchinson and the time she signed the Deed. Where, as I have indicated, I have issues as to the reliability of Ms Rossi's evidence about her subjective state of mind, meeting the burden of proving such a change in capacity in a small window of time would not in any event be easy, absent observers who might provide corroborative evidence in support. However, there were no external signs of such a dramatic change, having regard to the evidence of Mr McCristal and Mr Hutchinson. 411 I am not satisfied that Ms Rossi has discharged the onus of proving on the balance of probabilities that she lacked the mental competence on 29 October 2009 to understand, if the transactions contemplated under the Deed had been sufficiently explained to her, what was provided for under that Deed and to enter into it. She has not established on the balance of probabilities that she was not capable of understanding that there were issues relating to the prospects of her claim, that by executing the Deed her claims against Qantas would be resolved and come to an end, that there would be no necessity for a trial, and that she would be paid the relevant sums. 412 Further, even if, contrary to the approach in Gibbons v Wright as discussed in Hanna v Raoul and Hobhouse v Macarthur-Onslow and applied in A v N, the question is to be framed as whether Ms Rossi had the capacity to understand the Deed taking into account the explanation she in fact received from Mr McCristal and Mr Hutchinson, I am not satisfied that Ms Rossi lacked the requisite mental capacity. I am not persuaded that the explanation they gave was insufficient in the circumstances. 413 The expert evidence does not persuade me to form a different view. Rather, it tends to support my conclusion. Dr Parmegiani's opinion was premised on a number of circumstances pertaining to the conduct of the settlement conferences that were not established. Further, it was premised on Ms Rossi's mental state being consistent in 2008 and 2020, a conclusion which is undermined by evidence of deterioration in Ms Rossi's mental health, albeit that such evidence was relatively limited. Regardless, Dr Parmegiani confirmed under cross examination that he considered Ms Rossi would have been capable of understanding the nature and effect of the Deed if she were given a sufficient explanation of it. 414 I found the evidence of Dr Lee to be of more assistance, because it focussed on the contemporaneous evidence. Whilst his opinion was qualified as a result, his process of identifying examples of reasoning and analysis from the evidence before him was helpful, and supports the conclusion I have reached. 415 Because Dr Singleton was the only medical professional who treated Ms Rossi at the time who gave evidence, I have given careful consideration to her evidence. Her evidence certainly paints a picture of Ms Rossi being highly emotional both on the evening of 28 October 2008 and after the settlement conference of 29 October 2008. Dr Singleton had concerns generally about her wellbeing and mental health. However, as Dr Singleton conceded, she would defer to the opinions of psychiatrists and she did not focus on or assess mental capacity as at 27-29 October 2008. Her concerns as to capacity arose later when she was given additional information by Ms Rossi. Whilst it is important to note that Dr Singleton's consultation notes record Ms Rossi's distress at the time, they also contain details that reveal the capacity to analyse and recall details about the settlement. And in any event, Dr Singleton opined only that Ms Rossi's capacity was 'impaired'. I prefer the evidence of Dr Parmegiani and Dr Lee. I am not satisfied that any impairment was such as to deprive Ms Rossi of the requisite capacity.

Rossi v Qantas Airways Limited

At a glance

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Judgment (55 paragraphs)

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Legislation Cited (9)

Cases Cited (52)

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