Seidler v The University of New South Wales

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 24 of 2011

THE AUSTRALIAN GRADUATE SCHOOL OF MANAGEMENT 'AGSM'

DEPUTY VICE-CHANCELLOR RICHARD HENRY (NOW PROFESSOR RICHARD HENRY)

JUDGE: COWDROY J DATE OF ORDER: 9 JUNE 2011 WHERE MADE: SYDNEY

1. Judgment be entered for the Respondents pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth).
2. The Applicant pay the Respondents' costs of the proceedings and of this motion. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website.

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 24 of 2011

THE AUSTRALIAN GRADUATE SCHOOL OF MANAGEMENT 'AGSM'

DEPUTY VICE-CHANCELLOR RICHARD HENRY (NOW PROFESSOR RICHARD HENRY)

JUDGE: COWDROY J DATE: 9 JUNE 2011 PLACE: SYDNEY

REASONS FOR JUDGMENT 1 On 14 January 2011 Kathryn Seidler ('the applicant') filed a Statement of Claim ('SOC') against each of the respondents. On 18 February 2011 the respondents filed a notice of motion ('the respondents' motion') seeking summary judgment pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) ('the Court Act'). In the alternative, such motion also sought an order that the proceedings be dismissed pursuant to O 20 r 5 of the Federal Court Rules ('the Rules') on the basis of being frivolous or vexatious or constituting an abuse of process and/or that the pleadings in the SOC be struck out pursuant to O 11 r 16 of the Rules. 2 As will become apparent, the basis of the respondents' motion arises from a Deed of Release signed by the relevant parties on 9 February 2009, and a decision of the Federal Magistrates Court of Australia ('the FMC'). The respondents before the FMC are the first and second respondents in the present proceedings. 3 On 1 April 2011 the applicant filed a notice of motion, seeking, inter alia, summary judgment pursuant to s 31A(2) of the Court Act; that the respondents' defence be dismissed pursuant to O 20 r 5 of the Rules; that the defence be struck out pursuant to O 11 r 16 of the Rules; an extension of the time in which to institute the proceedings and an order for suppression of allegedly confidential medical information. 4 On 13 May 2011 the applicant filed a second notice of motion seeking, inter alia, to join the University of Sydney, the Australian Marketing Institute and Bartier Perry to the current proceedings. Such motion will not be dealt with in this judgment. 5 In this judgment the Court will consider the respondents' motion and the applicant's first motion filed on 1 April 2011.

FACTS 6 On 1 March 2005 the applicant enrolled in an honours program at UNSW and on 13 April 2005 the Australian Graduate School of Management ('AGSM') employed the applicant as a Research Assistant on a casual basis. Such employment was officially terminated on 13 December 2005. The applicant's last wages were paid on 19 May 2005. 7 In March 2006 the applicant completed her honours program. During 2006 the applicant lodged a disability discrimination complaint against UNSW to the Human Rights and Equal Opportunity Commission ('HREOC'). On 23 January 2008 a HREOC delegate terminated the discrimination complaint. 8 On 20 February 2008 the applicant instituted proceedings (SYG 398 of 2008) in the FMC ('the FMC proceedings') seeking relief under s 5 of the Disability Discrimination Act 1992 (Cth). The jurisdiction of the FMC was invoked pursuant to the extant s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). 9 On 28 February 2008 the applicant instituted proceedings (677 of 2008) in the District Court of New South Wales ('the District Court proceedings') against UNSW. Such proceedings related to a claim by the applicant of negligence against UNSW allegedly arising out of the applicant's workplace conditions. 10 Subsequent to negotiations between the applicant, UNSW and AGSM, a document entitled 'Heads of Agreement' ('HOA') was signed by such parties on 14 October 2008. The HOA recites an agreement of the parties to settle both the District Court proceedings and the FMC proceedings for a sum of $65,000 'including all costs and expenses'. The HOA was stated to be subject to the execution of a Deed of Release. 11 A Deed of Release was entered into and duly signed on 9 February 2009 by the applicant and by both UNSW and AGSM. The Deed of Release provided for the termination by the applicant of both the District Court proceedings and the FMC proceedings in consideration of a payment to be made to the applicant of $65,000, from which UNSW was authorised to make certain payments as provided by the Deed of Release. 12 The District Court proceedings were discontinued on 9 February 2009 by the filing of a notice of discontinuance. The FMC proceedings were also discontinued on 20 February 2009 when the applicant filed a notice of discontinuance ('NOD') in the FMC. 13 On 3 June 2010 the applicant filed an 'Application in a Case' in the FMC proceedings seeking to set aside the Deed of Release and the NOD. In support of such application, the applicant claimed that the HOA and the Deed of Release had been obtained as a result of fraud, intent to defraud, 'legal criminal collusion', duress, undue influence and unconscionability. 14 A hearing of the FMC proceedings took place before Nicholls FM on 14, 15 and 16 September 2010. 15 The judgment of Nicholls FM (see Seidler v University of NSW and Anor [2010] FMCA 887) ('the FMC decision') delivered on 18 November 2010, records the substantial history of the complaints made by the applicant against UNSW and AGSM. On 18 November 2010 orders were made as follows: (1) The application in a case of 3 June 2010 is dismissed. (2) The applications in a case of 10 August 2010 and 30 August 2010 (first and second) are dismissed. (3) The request for suppression is refused. (4) The applicant to pay the first and second respondents' costs as assessed.

FINDINGS OF NICHOLLS FM 16 Nicholls FM at [12] described the applicant having: …a deep sense of grievance towards the respondents, their legal representatives, a number of staff at the university and indeed her own former legal representatives. 17 Nicholls FM considered the extensive claims that were made before him. These claims included fraud, duress, undue influence, unconscionability and 'criminal collusion': see [32] of the FMC decision. 18 Before Nicholls FM, the applicant claimed that she was to be paid $80,000 in consideration for entering into the HOA and the Deed of Release. His Honour found that the applicant's calculations were without foundation and that the amount which was paid to her, namely $65,000, was the full agreed settlement consideration (see [105] of the FMC decision). 19 His Honour dismissed any allegation of fraud and collusion, concluding that there was no evidence to support such claims. His Honour also dismissed the applicant's allegations of duress in relation to the Deed of Release. His Honour noted that at the time that the applicant signed the Deed of Release and in filing the NOD she was legally represented and that the various documents relating to the settlement had received 'active and vigorous and personal involvement by Ms Seidler': see [126] of the FMC decision. 20 The applicant had also asserted before Nicholls FM that her lawyers had engaged in untoward conduct. His Honour dismissed any such allegation, finding at [136]: In any event, any such complaint on its own does not reveal any wrongdoing on the part of her lawyers, such that her complaints about how the HOA and the NOD were signed can be sustained. 21 His Honour also found at [144] that there was 'nothing in the material before the Court to show that she was misled, duped or that some mistake occurred' in relation to her execution of the HOA which preceded the execution of the Deed of Release. 22 His Honour also said at [147] in regard to her complaint against her lawyers: What also seems to have escaped Ms Seidler in making this suite of complaints is that, whatever the circumstances of the settlement negotiations in October 2008 leading to the HOA, by January/February 2009 it is quite clear that she had progressed to an active and direct participation in the discussions surrounding the DOR. 23 His Honour concluded at [149]: Both documents [the Deed of Release and the NOD] were signed by her in full knowledge of what the settlement sum was to be (that is, $65,000). 24 His Honour also found that there was no evidence of collusion between her lawyers and any other party to constitute fraud (see [157] of the FMC decision). 25 His Honour also said at [159]-[160]: There are clearly some sad aspects to this case. The sense of grievance felt by Ms Seidler against the University, various academics employed there, the University's lawyers, as well as her own lawyers was quite palpable. But the sense of grievance, and the depth of her emotion, does not suffice to provide any probative basis for her allegations, let alone to make out that the HOA was entered into under duress. That her lawyers may have said that her case had little merit, and therefore what was offered may have been a good offer, is part of the proper evaluation and advice proffered daily to clients by legal representatives. That clients may not like what they hear, or at times may even feel bewildered by the negotiation process, does not on its own establish duress. Nor is it made out in the current circumstances. 26 His Honour concluded at [215] that there was no basis to impugn the HOA or the Deed of Release.

PROCEEDINGS BEFORE THIS COURT 27 The applicant's SOC contains 178 principal paragraphs and 52 pages. 28 Under the heading 'Preliminary' the applicant recites in her SOC that she was an: …employee, student, research student, working for her thesis on a particular project, and employed as a research assistant for a number of projects and enrolled as a 4th year honors [sic] student at the First Respondent ("UNSW") and the second respondent ("AGSM"), from 1 March 2005 until March 2006. 29 The applicant further recites that: At all material times and thereafter [she was] involved in proceedings against the First and Second Respondents and engaged Robert Harrington counsel and Carrroll & O'Dea to pursue her personal injury proceedings for Occupational Overuse Syndrome (OOS) and Milne Berry Berger Freedman 'MBBF' to amend the application in her discrimination matter. 30 The applicant then refers to the legal representatives of UNSW and AGSM, alleging them to be corporations under the Trade Practices Act 1974 (Cth) ('the TPA'). It should be noted that no legal representatives are nominated as respondents to these claims and no relief is sought against them in the current SOC. 31 The applicant identifies the third and fourth respondents as 'two of the senior most executives, and/or officers, servants and agents and employees of UNSW and/or AGSM'. The applicant further claims that the 'fifth to eighth respondents had teaching and/or supervisory control' over the applicant. 32 The next portion of the SOC is entitled 'The legal'. It alleges fraudulent conduct by the lawyers engaged by UNSW and AGSM in respect of the payment of monies under the Deed of Release. 33 The SOC under the heading 'Dated Discoverability (TPA s.87G)' is virtually incomprehensible. It apparently alleges that the applicant sustained an 'Adjustment Disorder and or Post Traumatic Stress Disorder ('PTSD') in 2008 or 2009'. The applicant asserts that the respondents cannot claim that: …this injury and or illness was part of the Deed and did not compensate for such. I was not informed regarding the meaning or causation of the Adjustment Disorder ('AD') diagnosis until 2010. I was not informed of a misdiagnosis of chronic post traumatic stress disorder until 2010. 34 The applicant alleges that the: Respondents and the legal named [sic] within this statement of claim I allege sought to intentionally and or negligently attempt to cover up and or ignore this diagnosis, increase and prolong stress, trauma, aggravation, victimisation and suffering despite known reports of anxiety and despondency since 2005 to intentionally inflict mental harm and prolong suffering by chronically failing to provide care, resolution and or rehabilitation since 2005. 35 The applicant then asserts: The respondents have in no way compensated nor settled for PTSD nor even remotely for the damages I experienced and continue to experience. Medicare has never been re-imbursed for such medical care and thus neither has the public. No damages for pain, suffering and humiliation were compensated. 36 The applicant then submits: I was not aware of the ability to file under a TPA contravention until 2010 and certainly in no way well enough to do so. OLSC, Costs Assessments and Privacy complaints had to be finalized and all directed me back to court as outside their jurisdictions early to even still late in 2010 - despite being advised by legal to use such channels. I was misled, exploited and victimized. 37 Thereafter the SOC makes allegations under the heading 'Employment and Enrollment [sic] conditions' which relates to her alleged discrimination whilst either a student or employee of UNSW and/or AGSM. The applicant refers to the District Court proceedings in respect of the alleged failure by UNSW to provide an: …ergonomically safe work station and the resultant upper limb injury I incurred of which an In Principal [sic] agreement for $80,000 was not informed to me ($65,000 on the Heads of Agreement and Deed). 38 The applicant asserts that 'the deed [obviously the Deed of Release] can not be pleaded as a bar to proceedings due to fraud and/or not in the interests of justice (the Federal Court Rule O 35 r 7(2))'. The applicant again repeats her assertion that the 'post traumatic stress disorder can not be argued as part of the prior settlement and can not be argued to have not had an impact on signing'. 39 The SOC then alleges fraud, duress, undue influence and unconscionability. The applicant alleges that the FMC proceedings 'did not plead the Trade Practices Act 1974 claims, nor does it plead the repeated ongoing victimisation and adversity'. The applicant also alleges that in the FMC proceedings, the FMC could not entertain such claim because the damages exceed $750,000. Accordingly the applicant says she wishes to remedy her 'six year suffering' by the claim now made before this Court. 40 Thereafter the SOC recites allegations of sex discrimination 'and or sexual harassment', 'direct disability discrimination', 'aggravation and victimisation', and 'bullying and harassment'. The applicant alleges claims under the Fair Work Act 2009 (Cth) ('the Fair Work Act') and/or the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth). 41 The SOC also contains a section entitled 'CLAIMS UNDER the TPA and FTA: employment conditions AND ENROLMENT CONDITIONS'. The Court notes that 'FTA' refers to the Fair Trading Act 1987 (NSW). Under this section the applicant recites the initial representations which she alleges were made to her concerning her employment and of questions she asked of the fifth, seventh and eight respondents concerning her initial decision to enrol in the honours program at UNSW. 42 Thereafter the SOC deals with matters relating to alleged fraudulent conduct which the applicant claims induced her into the HOA and Deed of Release. The SOC subsequently states (without particularisation) claims in contract, tort and fraud and finally 'claims in equity' which appear to have been based upon the particulars of fraud and allege misleading documents. Significantly the applicant states: I continued in employment and education, and was misled in settlement documents, with UNSW and AGSM and the Respondents in reliance on that assumption…

THE RESPONDENTS' SUBMISSIONS 43 The respondents seek, inter alia, an order under s 31A(2) of the Court Act. This claim is based upon the premise that the applicant's claims contained in her SOC arise from her association with UNSW and AGSM, and are as such within the ambit of the Deed of Release. In such release the applicant released those parties, their servants, agents and others from any claim arising from such association; and confirmed that all obligations of UNSW and AGSM were duly fulfilled by the Deed of Release. 44 Additionally the respondents submit that, irrespective of the effect of the Deed of Release, it is difficult to discern what is sought by the SOC or what causes of action that are said to be raised by it, with the consequence that the SOC should be dismissed pursuant to O 20 r 5 of the Rules. The respondents rely, inter alia, upon Paramasivam v University of NSW and Ors [2006] NSWSC 1189 at [34]. 45 The respondents also submit that the SOC 'regurgitates' many of the matters dealt with in the FMC proceedings, and as such the complaints in her SOC have 'already been decided against the Applicant and or resolved or settled between the parties'. 46 The Court also notes that these proceedings were not brought by the applicant as an appeal against the FMC decision, but rather a fresh claim agitating the same or substantially similar claims resolved before Nicholls FM in the FMC proceedings.

APPLICANT'S RESPONSE 47 The applicant opposes the relief claimed by the respondents. The applicant has filed voluminous written submissions and has made oral submissions. The written submissions are difficult to follow. 48 For example, allegations are raised concerning a payment of $15,000 which was already the subject of a finding made by Nicholls FM. There are also allegations of estoppels and unconscionability in relation to such payment, and of asbestos related common law claims which have not been referred to in the SOC. Claims are also made of unjust enrichment which are not apparent in the SOC. There are also submissions concerning contractual claims, discrimination, breach of confidentiality and privilege. 49 The submissions do not directly answer the two specific issues raised by the respondents' motion, namely whether the Deed of Release operates to bar any further claims by the applicant and whether the findings of Nicholls FM, which were not appealed, operate as res judicata. 50 During oral submissions the applicant informed the Court that her claim for PTSD which is included in her SOC was diagnosed in the first consultation she had with Dr Ian De Saxe which took place on 9 September 2010. Dr De Saxe's first report is dated 4 April 2011. If the applicant's recollection is correct, it has the consequence that she was aware of such condition prior to the hearing of the FMC proceedings. 51 The applicant claims that her alleged PTSD could not be covered by the Deed of Release because of its relatively recent diagnosis. The applicant also claimed that she is suffering from a panic disorder (without agoraphobia), being claims which have not been particularised, and which she asserts have developed recently but are related to her time as a student at UNSW or whilst casually employed by AGSM.

The Deed of Release 52 The Deed of Release contains a summary of the extensive history concerning the entry by the applicant into the honours program in January 2005 at UNSW and of the offer of employment made by AGSM in March 2005. 53 The Deed of Release cites the termination of her employment in April 2005; a work injury sustained by the applicant; and complaints against Professors Ian Wilkinson, Paul Patterson and Pamela Morrison, who are respectively the fifth, sixth and seventh respondents in the present proceedings. The Deed of Release outlines the institution of proceedings by the applicant before HREOC, the District Court proceedings and the FMC proceedings. The Deed of Release confirms that the parties have had the 'opportunity to seek legal advice about the terms of this Deed'.

Operative Provisions 54 The Deed of Release provided for the payment of $65,000 to the applicant in full settlement of the disputes conditional upon the applicant executing the Deed of Release, and upon the discontinuance of the District Court proceedings and the FMC proceedings. UNSW was authorised by the Deed of Release to deduct from the sum of $65,000 any monies due payable in respect of the claim by the applicant on any person or body in respect of workers compensation, Social Security payments, Medicare, sick leave payments and similar payments.

The Scope of the Deed of Release 55 The Deed of Release is very broad in its terms. It extends not only to the parties but also to any action which the applicant had or might have had against UNSW or AGSM, and to any cause of action or potential cause of action against the parties, their officers, servants, agents and related entities as follows: 2.1 In consideration of the payment under clause 1.1 hereof, the parties release and discharge each other, their officers, servants and agents, and any related entity, from all actions, suits, claims, demands and causes of action both at law and in equity (and any associated costs) which the parties may now have or which but for this document could, would or might at any time have or have had, on or against each other, their officers, servants and agents, and any related entity, regarding or arising out of:- 2.1.1 The matters set out in this Deed; and/or 2.1.2 The Incident; and/or 2.1.3 The Employment; and/or 2.1.4 The termination of the Employment; and/or 2.1.5 The Honours Program; and/or 2.1.6 The matters arising out of the Complaints; and/or 2.1.7 The matters arising out of the HREOC Complaint; and/or 2.1.8 The FMC proceedings (SYG398/2008); and/or 2.1.9 The District Court Proceedings (677 of 2008).

Bar to Proceedings 56 Clause 10.1 of the Deed of Release provides: 10.1 This deed may be pleaded as a bar to any action, suit or proceedings commenced, continued or taken by any party to this deed or on its behalf in connection with any of the matters referred to in this deed except for a breach of a provision of this Deed.

Consideration 57 In Grant v John Grant & Sons Proprietary Limited (1954) 91 CLR 112 the majority of the High Court of Australia (Dixon CJ, Fullagar, Kitto, Taylor JJ) considered the correct approach to the interpretation of a deed of release. Having considered numerous authorities, both at common law and in equity at 124-129, the majority of the High Court said at 129-130: From the authorities which have already been cited it will be seen that equity proceeded upon the principle that a releasee must not use the general words of a release as a means of escaping the fulfilment of obligations falling outside the true purpose of the transaction as ascertained from the nature of the instrument and the surrounding circumstances including the state of knowledge of the respective parties concerning the existence, character and extent of the liability in question and the actual intention of the releasor. 58 The Court recognised that cases existed in which a party could not rely upon a release in certain circumstances which the majority of the High Court stated at 130: It may at once be conceded that there may be cases where the reasons for precluding the defendants from relying upon the release go to validity of the contract or where it would not be in accordance with the principles of equity to deny to the defendant his legal right under the release except as part of a rescission of the whole transaction. But they are cases depending on mistake, failure in a duty of disclosure, misrepresentation or other ground of avoidance. They are not cases depending on the equity to have the general words of a release confined to the true purpose of the transaction ascertained from the scope of the instrument and the external circumstances. 59 The majority then stated the following proposition at 131: The question is whether upon a proper interpretation of the deed the general release clause should be restrained to matters in dispute within the meaning of these recitals. The question depends primarily on the application of the prima facie canon of construction qualifying the general words of a release by reference to particular matters which recitals show to be the occasion of the instrument. But it is also affected by the general tenor of the deed. It is unnecessary to say more about the canon of construction or to discuss further the contents of the deed. As to the first all that remains is to apply the principle that prima facie the release should be read as confined to the matters forming the subject of the disputes which the deed recites. As to the second, such indications as can be found in the provisions of the deed point rather in the same direction. The detailed character of the terms of settlement, the careful readjustment of rights, the specific reference to the debt of H. C. Grant and his wife and its discharge and the particularity of the allocation of things and contracts between the companies do not favour the view that a general release was intended going outside the actual area of dispute. 60 Observations to similar effect were made by the High Court more recently in Toll (FGCT) Pty Limited v Alphapharm Pty Limited and Others (2004) 219 CLR 165 at [40] in which the Court said: It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction. [Footnotes omitted] 61 The New South Wales Court of Appeal in Marinchek v Cabport Pty Ltd [2010] NSWCA 334 referred at [37] of its decision to the observations of Gleeson CJ in International Air Transport Association v Ansett Australia Holdings Limited and Others (2008) 234 CLR 151 at [8] where his Honour said: In giving a commercial contract a businesslike interpretation, it is necessary to consider the language used by the parties, the circumstances addressed by the contract, and the objects which it is intended to secure. An appreciation of the commercial purpose of a contract calls for an understanding of the genesis of the transaction, the background, and the market. This is a case in which the Court's general understanding of background and purpose is supplemented by specific information as to the genesis of the transaction. The Agreement has a history; and that history is part of the context in which the contract takes its meaning. Before considering that history, it is necessary to explain, by reference to the text, how the issue of construction arises. [Footnotes omitted] 62 Further, in Commonwealth Development Bank of Australia Ltd v Kok [2003] FCA 90, Beaumont J succinctly stated at [34]: In the first place, it is a settled principle of interpretation that general words in an instrument of release are limited always to that thing, or those things, which were specially in the contemplation of the parties at the time when the release was given.

Statutory Provisions 63 Section 31A(2) of the Court Act provides: (2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is defending the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. 64 There has been several decisions considering the interpretation of s 31A of the Court Act: see Duncan v Lipscombe Child Care Services Inc [2006] FCA 458 in which Heerey J said at [6]: Plainly s 31A was introduced to establish a lower standard for strikeouts (either of claims or defences) than that previously laid down by the High Court's decisions in Dey v Victorian Railways Commissioners [1949] HCA 1; (1948) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 130, namely that the allegations are "so clearly untenable that [they] cannot possibly succeed". 65 In Spencer v Commonwealth of Australia (2010) 241 CLR 118 French CJ and Gummow J described the operation of s 31A(2) of the Court Act at [25] as follows: Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a "fanciful" prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success. 66 See also the observations of Katzmann J in Visscher v Teekay Shipping (Australia) Pty Ltd [2011] FCA 1 at [22] in which her Honour referred to the decision in Spencer.

Summary Judgment 67 The threshold issue to the respondents' motion is whether the Deed of Release operates to bar the applicant's proceedings. Effect must be given to the intention of the parties, expressed by the words in the Deed of Release. Such approach is emphasised by the authorities referred to at [57]-[62] above. 68 Clause 2.1 of the Deed of Release is clear and unambiguous. The applicant released UNSW and AGSM from any claim '… which the parties may now have or which but for this document could, would or might at any time have or have had' arising out of 'the incident', her employment, the termination of her employment, her honours program, the matters arising out of her complaints, matters arising out of the FMC proceedings and the District Court proceedings. 69 'The incident' is defined in the Deed of Release as the applicant's alleged ergonomically unsafe workstation in the Honours Room whilst undertaking the honours program and her casual work as a research assistant from about March 2005 and continuing. 70 The claims now made by the applicant are made against the same parties as those who executed the Deed of Release and against other officers or servants of those institutions. Accordingly, in these proceedings the individual respondents are entitled to the benefit of the Deed of Release, provided the Deed of Release extends to the current claims which the applicant now makes. 71 Each of the claims now made arise out of the period when she was engaged at either UNSW or AGSM. By the express words of the Deed of Release, the applicant released the respondents not only from claims which were existing, but any future claim that she might have arising out of her engagement at UNSW and/or AGSM either as a student or as an employee. 72 Insofar as the applicant now seeks to institute what she claims are new matters, namely her alleged PTSD and also a claim under the Fair Work Act, those are claims which she 'might at any time have or have had' and as such are also covered by the Deed of Release. Accordingly the respondents are entitled to plead in answer to her SOC the bar provided by cl 10.1 of the Deed of Release. 73 The complaints which the applicant raises in her SOC of improper conduct, fraud, collusion and duress whilst engaged by AGSM or studying at UNSW were raised in the FMC proceedings and were duly answered by Nicholls FM. Further, the applicant's allegations concerning duress, threats and undue influence in relation to her entry into the Deed of Release were also expressly raised before his Honour and findings were made by his Honour in relation to such allegations. 74 In the absence of any appeal from the decision of Nicholls FM it must be taken that his Honour's findings concerning the validity of the Deed of Release, its comprehension by the applicant prior to entering into the Deed of Release, and the circumstances surrounding its execution have been established beyond doubt. 75 Other claims raised by the applicant including alleged breaches of the TPA seek to raise issues which arise out of the same factual matrix relied upon by the applicant in the FMC proceedings. The applicant now alleges that she was unaware 'of the ability to file under a TPA contravention until 2010'. However, the applicant sought to raise TPA claims before Nicholls FM. Insofar as the applicant now seeks to raise claims that she has not been compensated for her alleged PTSD, the facts relied upon to support such a claim are those which arose in 2008 or 2009 and as such fall within the ambit of the Deed of Release. 76 Any complaint now concerning the operation of the Fair Work Act can have no consequence, not only because of the existence of the Deed of Release but also because the Fair Work Act only came into operation on 1 July 2009. 77 The Court considers that the other claims made by the applicant, to the extent such claims can be discerned to any level of certainty, all fall within the ambit of the Deed of Release. 78 In view of the above findings, the Court is satisfied that the respondents should be granted summary judgment in these proceedings pursuant to s 31A(2) of the Court Act. As such, it is unnecessary for the Court to consider the remaining orders sought in the respondents' motion. For completeness, the Court will nevertheless provide its conclusions in respect of each order sought.

Abuse of Process 79 Order 20 rule 5 of the Rules relevantly provides: (1) This rule applies to a proceeding commenced on or after 1 December 2005 if the Court is satisfied that, for the proceeding generally or for a claim for relief in the proceeding: (a) the proceeding or claim is frivolous or vexatious; or (b) the proceeding or claim is an abuse of the process of the Court. (2) The Court may order that the proceeding be stayed or dismissed generally or in relation to the claim for relief. 80 The applicant clearly seeks to challenge the findings of Nicholls FM made in respect of the allegations of fraud, duress and unconscionability concerning the execution of the HOA and the Deed of Release. However, the applicant has not sought to appeal the decision of Nicholls FM. Therefore, the Court considers that the applicant is attempting to re-litigate matters already determined adversely to the applicant. 81 In Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1 the House of Lords considered the basis upon which pleadings could be struck out as constituting an abuse of process. Lord Bingham of Cornhill considered the doctrine of abuse of process at 22. 82 His Lordship at 22 referred to the observations of Lord Diplock in Hunter v Chief Constable of the West Midlands Police [1982] AC 529, 536 regarding the inherent power which any court of justice possesses to prevent misuse of its procedure. His Lordship at 23 then referred to the observations of Sir James Wigram V-C in Henderson v Henderson (1843) 3 Hare 100 at 114-115 in which the Vice Chancellor referred to the necessity for parties to bring before a court: …their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of a subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence or even accident omitted part of their case. 83 At 31 Lord Bingham, having reflected upon Henderson v Henderson said: The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. 84 The Court is satisfied that the institution of these proceedings is an abuse of process. The abuse lies in the fact that the claims now made by the applicant all arise out of the circumstances for which she has given an express release to the respondents. The validity of the Deed of Release has already been conclusively determined by Nicholls FM. 85 Irrespective of O 20 r 5(1) of the Rules the Court would have power in its inherent jurisdiction to stay the proceedings: see Walton v Gardiner (1993) 177 CLR 378 at 392-393. These proceedings are 'foredoomed to fail': see Walton v Gardiner at 393; Moran v Minister for Land and Water Conservation for the State of New South Wales [1999] FCA 1637 at [46].

Embarrassment 86 Lastly, the respondents have alleged that irrespective of the alleged abuse of process and of the 'foredoomed' nature of the applicant's proceedings, O 11 r 16 of the Rules has application. Such rule provides: Embarrassment etc Where a pleading: (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading; (b) has a tendency to cause prejudice, embarrassment or delay in the proceeding; or (c) is otherwise an abuse of the process of the Court; the Court may at any stage of the proceeding order that the whole or any part of the pleading be struck out. 87 In support of such claim the respondents refer to the fact that the SOC raises numerous matters and various alternatives in many of its paragraphs; it does not contain a statement in summary form of the material facts which comprise the cause or causes of action; the pleading is not as brief as the nature of the case admits (as required by O 11 r 3 of the Rules); and the SOC is repetitive, cast in imprecise language, contains irrelevancies, and is largely incomprehensible. 88 The SOC has clearly not been prepared by a lawyer. Although the Court has endeavoured to glean its understanding of the claim, it is difficult to do so. The Court has provided its interpretation of what is apparently intended by it, namely the setting aside of the Deed of Release; the raising of a new claim under the TPA because the claim for PTSD was never included in the matters already settled; and new allegations of breaches of the Fair Work Act. 89 Further, the SOC includes conclusions based upon incoherent recitals of facts, or where the facts are non-existent. It is therefore defective on this ground: see Trade Practices Commission v David Jones (Australia) Pty Limited (1985) 7 FCR 109 at 114; Ratcliffe v Evans [1892] 2 QB 524; Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees Association of Western Australia (1987) 13 FCR 413 at 417-418. 90 The Court is also satisfied that the SOC is embarrassing and should be struck out on this ground alone: see Shelton v National Roads and Motorists Association Limited [2004] FCA 1393 at [18].

Applicant's Notice of Motion 91 The Applicant's motion filed on 1 April 2011 is unsupported by any affidavit. Such motion seeks various orders which are now otiose in view of the Court's finding that summary judgment be entered in favour of the respondents under s 31A(2) of the Court Act.

ORDERS 92 For the above reasons the Court will order that summary judgment be entered in favour of the respondents pursuant to s 31A(2) of the Court Act. I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.