THE HEARING
12 In support of the applications for summary judgment and leave to amend, Monash filed an affidavit of Andrew Picouleau sworn 28 November 2011, as well as two affidavits of its solicitor, Stuart Matthew Pill, sworn on 6 October 2011 and 15 December 2011 respectively.
13 At the hearing today, Mr Rucinski appeared without legal representation. He explained that he had been unable to obtain legal representation, and that one of the two firms that he had selected had withdrawn as late as 7 February 2012. However, he did not seek a further adjournment for this reason.
14 Mr Rucinski was very articulate in support of his case. He relied on an affidavit of his treating psychologist, Ms Guna Celms, sworn on 11 November 2011, which had been filed by his previous lawyers. Exhibited to that affidavit was Ms Celms's psychological report concerning Mr Rucinski dated 11 November 2011. Mr Rucinski also prepared a draft affidavit which was admitted into evidence during the course of the hearing.
15 Mr O'Grady, who appeared as counsel for Monash, contended that the Court should not find that Mr Rucinski, at the time of executing the deed, lacked capacity to legally bind himself. In his submission, there was no proper basis for relieving Mr Rucinski from the obligations contained in the deed. He referred to the affidavit of Mr Picouleau, and some of the responses of Mr Rucinski to it.
16 The affidavit of Mr Picouleau set out the circumstances in which the agreement was reached at the mediation on 6 June 2011. Mr Picouleau explained that he attended together with counsel and instructing solicitor, and that he was told by the registrar that Mr Rucinski was in attendance with counsel and instructing solicitor. He said that the mediation was conducted in caucus sessions with the registrar moving between the parties who were separately located so that at no time was he directly in communication with Mr Rucinski. In relation to Mr Rucinski's perceived capacity on the day, Mr Picouleau deposed as follows:
5. At no time during the course of the mediation on 6 June 2011 was the Respondent advised by the Applicant's representatives or the Registrar conducting the mediation or any other person, or otherwise aware that the Applicant:
(a) had attended counselling sessions with a psychologist;
(b) had seen a psychologist or was under any medical care;
(c) had any medical condition or any potential mental incapacity;
(d) was stressed and/or anxious such that his capacity to understand the advice of his representatives in respect of the settlement reached or the operation of the terms and conditions of the settlement agreement that was signed by the parties ("Settlement Agreement") was impaired.
6. Further, as the mediation was conducted in caucus sessions as described below there was limited opportunity for the Respondent or its representatives to observe the Applicant.
17 Mr Picouleau said that the key issues in the negotiation were threefold. First, the scope of the settlement and, in particular, whether potential claims in respect of intellectual property should be included. Second, the appointment of Mr Rucinski to an adjunct role at Monash. Third, the quantum of any settlement amount.
18 At around 3.30 pm, an in principle agreement was reached on the scope of the settlement and negotiations continued in relation to the quantum of any settlement payment and the possible adjunct appointment. By that time it was accepted that the settlement would include all matters concerning the proceeding, the employment and its cessation, including intellectual property. It was also agreed that the settlement would be on the basis of written terms, including releases.
19 By approximately 5 pm, the amount of the quantum had been agreed and a draft of the settlement deed was provided to the registrar by email at about 5.12 pm, so that Mr Rucinski could consider it. At 5.45 pm the registrar returned and said that the terms had been discussed with Mr Rucinski and considered by him and his representatives. The registrar indicated certain amendments and adjustments which Mr Rucinski required, and to which Monash agreed. At this stage, Mr Rucinski also put to Monash a counter-proposal in respect of the quantum of the settlement sum of $95,000, including $35,000 for legal costs. The counter-proposal was also accepted by Monash. Mr Rucinski's instructing solicitor then arranged for the deed which had been prepared to be amended accordingly and emailed to the registrar. This occurred around 5.50 pm. Afterwards, at Mr Rucinski's request, some handwritten amendments were made to cl 3.1 of the deed to ensure that the releases released Monash employees only in their capacity as such.
20 Against this background, Mr Rucinski today argued that he signed the deed under duress. He submitted that the Court should therefore dismiss the interlocutory application brought by Monash, order that the matter return to mediation and, in the event that mediation fails to resolve the dispute, program the proceeding for a hearing. He relied on Ms Celms's report, and contended that at the time of the mediation it was known to Monash that he was stressed and anxious and undergoing counselling by a professional psychologist.
21 Ms Celms's affidavit explained that Mr Rucinski was first referred to Ms Celms for counselling in March 2009 as a result of stress and depression arising from the difficulties in his workplace at Monash. By the time she made her report, Ms Celms had seen Mr Rucinski for 19 sessions. The report provides a detailed account of many of those sessions. Ms Celms, however, did not see Mr Rucinski on 6 June 2011 when he executed the deed. She saw him approximately one month before, on 4 May 2011, and approximately one month after, on 8 July 2011. Ms Celms freely accepted that she was not able to give an opinion about Mr Rucinski's exact condition on 6 June 2011, but from the observations she had made in the other sessions, both before and after, she concluded that:
At the time of executing the Deed, it was highly likely that John was very stressed and very anxious which in turn affected his capacity to fully understand the nature of the Deed.
…
Ms Celms further opined that given that it was highly likely that Mr Rucinski was very stressed and anxious at the time of executing the deed, his emotional state would have impaired his capacity to consider advice given to him during the course of the mediation and make a rational and considered decision regarding the deed.
22 Mr Rucinski said that it must have been evident to Monash that he was stressed and anxious and undergoing counselling because he claimed in his application to Fair Work Australia which preceded the application in this Court, that Monash had damaged his wellbeing, and also because in this proceeding he had made claims for damages for medical treatment and for general damages for distress, disappointment, humiliation, embarrassment, vexation and inconvenience.
23 In the draft affidavit which was accepted as his evidence, he said at [5] as follows:
During the mediation, I continued to experience the feeling of a great power imbalance, intimidation (eg withholding of my personal and professional property and archives for over 18 months) as a result of the continued actions by the respondent (persecution and oppression since 2006). As a result of this unreasonable pressure, I suffered a significant lack of sleep, particularly leading up to this mediation. Consequently, I was exhausted, gutted, drained, "in a haze", dehydrated, and completely wasted towards the end of the mediation, when the Deed of Release was presented by Monash. Reviewing the Deed, I became extremely angry at the respondents (sic) attempt to re write history and cement the damaging effect on my professional standing and career. The impact of this great injustice may have further compounded lack of understanding of the broader impact of the release which were not meant to be part of the settlement namely, intellectual property, trade practices and other aspects which were clearly outside the adverse action case subject to mediation.
24 Mr Rucinski then explained that, since the signing of the deed, he has raised significant concerns and invited Monash to renegotiate the deed on matters which he argued should not have been incorporated into the release. At [7] of his affidavit, Mr Rucinski said the deed of release was a major travesty of justice for the following three reasons:
(a) it is grossly inadequate and disproportionate in the remedies acknowledged in the settlement. That is, the settlement represents a small percentage (<5%) of the damages sought from Monash through cases including personal injury, intellectual property, and others. The settlement amount barely covers my basic entitlements (long service leave, annual leave, termination etc) which the respondent had unreasonably withheld for over 18 months since my departure from Monash.
(b) Furthermore, the Deed eliminates very substantial potential case(s) against Monash University and its employees who are trading on my intellectual property and deriving significant revenues which will continue for years to come, inappropriately acquired around 2008.
(c) It purports and sanctions a false and damaging to my reputation, depiction of history, namely portrays my contribution as a relatively minor one (one of the founders!!!), someone who came to be employed by Monash on a 12 month contract, rather than the true contribution and role as the visionary, architect and founder of the BHP-Monash Maintenance Technology Institute (MTI). This distortion of history is very damaging to my professional integrity, reputation and ultimately my career.
25 Then Mr Rucinski said that he has an extensive potential claim against Monash and a company called SIM Pty Ltd, for trading on his intellectual property. He stated that the deed of release was signed contrary to his instructions, and that the release was intended by him to settle only the adverse action proceeding and not any other claim, such as that pertaining to his intellectual property. He then continued to explain that his emotional and mental state remains fragile as a result of the treatment he has received from the Dean of the Faculty of Engineering, Professor Sridhar and others at Monash.
26 In oral submissions, Mr Rucinski restated many of the matters referred to in his affidavit, but elaborated on some of them. In particular, he said that he thought that the release applied only to the Court proceeding and did not extend beyond it to intellectual property claims and other claims related to his employment. He said that he did not read the document, but trusted counsel. He maintained that the release was contrary to his instructions. For example, he had asked his legal advisers to negotiate a cooling-off period, however, they did not do this. He said that at the mediation there was a power imbalance, he felt intimidated and only had a short time to read the deed.