Taseska v MSS Security Pty Ltd [2016] VSCA 193

1 The applicant, in two proceedings in the Trial Division, claimed damages for personal injuries which, she alleged, she suffered in the course of her employment with the respondent (formerly known as Chubb Security) as a security officer at Melbourne Airport between June 2001 and March 2003.[1]

2 The two proceedings were heard together before the same judge. In proceeding SCI 2012 No 05455 ('the Second Proceeding'), the applicant claimed damages for an injury to her left knee, which she sustained on 16 November 2001 while lifting a bag in the course of a screening operation at the airport. The judge upheld the applicant's claim, and awarded her pain and suffering damages in the sum of $250,000.

3 In proceeding SCI 2011 No 03100 ('the First Proceeding'), the applicant claimed damages in respect of three separate incidents or circumstances, namely:

(a) Psychological trauma on or about 13 June 2002, which she alleged she sustained as a result of an altercation with a passenger, in which the passenger used a spray can to spray her ('the spray can incident');

(b) Psychological and physical trauma on 18 August 2002 which the applicant claimed she sustained as a result of another altercation with a passenger ('the lady with the papers incident');

(c) Bullying and harassment to which the applicant claimed that she was subjected by fellow workers when she returned to work on reduced duties for eight hours per week for a period of three months from December 2002 to March 2003 ('the return to work events').

4 The judge dismissed the applicant's claims in respect of each of those three events or circumstances.

5 As a consequence, on 20 May 2016, the judge made the following orders:

(1) In the second proceeding, the judge ordered that judgment be entered for the applicant in the sum of $250,000, and that the respondent pay the applicant's costs.

(2) In the first proceeding, the judge ordered that the proceeding be dismissed and that the applicant pay the respondent's costs.

6 Subsequently, on 23 June 2016, the judge made two further orders that are relevant to these applications:

(a) That the order for costs in favour of the respondent in the first proceeding be stayed until further order;

(b) That the costs payable by the respondent to the applicant in the first proceeding be set off against the costs payable by the applicant to the respondent in the second proceeding.

7 On 28 June, the applicant filed an application for leave to appeal the decision in the first proceeding. The applicant also filed an application for extension of time for leave to appeal. In response, the respondent filed a notice of intention not to contest the application for extension of time. Accordingly, the judicial registrar ordered that the extension of time for leave to appeal be granted.

8 The Court now has before it a number of applications, namely:

(a) The application by the applicant for leave to appeal in respect of the orders made by the judge in the first proceeding.

(b) An application by the applicant for an order staying the costs payable by her in respect of the first proceeding pending the hearing and determination of the appeal.

(c) An application by the respondent that the order, that the respondent pay the applicant's costs in the second proceeding, be stayed until the hearing and determination of the applications (and if leave be granted, the appeal) in the first proceeding.

(d) An application by the applicant to set aside that part of the order made by the judge on 23 June that the costs payable by the respondent to the applicant in the second proceeding be set off against the costs payable by the applicant to the respondent in the first proceeding.

9 Before the hearing of the applications, the parties were advised by the Court that if the application for leave to appeal were granted, the Court would hear and determine the appeal at the same time.

10 The trial commenced on 29 August 2013. At that stage, the applicant was represented by counsel. The hearing was adjourned after opening addresses, and while the applicant was in the course of giving her evidence in chief.

11 The trial re-commenced before a different judge on 8 February 2016. The applicant was then unrepresented. She conducted her case with the assistance of her brother. It was agreed that the transcribed evidence of the applicant, from the first trial, be adopted as part of her evidence in the trial. The applicant gave further evidence. Three treating doctors were called on her behalf, Dr Chris Gorgioski (a general practitioner), Dr George Wahr (a treating psychiatrist), and Mr Simon Talbot (the treating orthopaedic surgeon). In addition, the applicant tendered a voluminous number of medical reports by ten different medical practitioners, including 56 reports of Dr Wahr, 11 reports of Mr Talbot, and six reports of Dr Gorgioski.

12 In response, the respondent called seven witnesses. They included Mr Anthony Poskus (the respondent's Aviation Services manager), Mr Bruce Lowe (the respondent's screening point supervisor), Ms Caterina Suares (the respondent's return to work coordinator) and Mr Trevor Richardson (the respondent's deputy aviation manager). The respondent also tendered a number of documents, including records of the Austin Hospital relating to the applicant, and a bundle of return to work documents relating to the applicant for the period June 2002 to November 2003.

13 In detailed reasons for judgment, the judge, first, dealt with the claim by the applicant in respect of the injury to her left knee, that was the subject of the second proceeding. The judge considered that the applicant's account of the circumstances in which she sustained that injury was plausible, notwithstanding that he had 'considerable reservations' as to the applicant's reliability as a witness in relation to the other aspects of her claim.[2] His Honour found that the account given by the applicant was supported by other evidence, including the evidence of Mr Richardson as to the numerous tasks that she was required to perform while operating the scanning machine.[3] The judge further held that the risk of the applicant sustaining a musculoskeletal injury as a consequence of the manner in which she was required to perform her work was foreseeable, and that the respondent had failed to take reasonable care to prevent injury to the applicant resulting from that risk. As we stated, the judge awarded the applicant $250,000 damages for pain and suffering resulting from that injury.

14 The judge then considered the three claims made by the applicant in the first proceeding.

15 In her evidence relating to the spray can incident on 13 June 2002, the applicant stated that she was asked by a fellow employee to check a male passenger's bag, as her colleague could not see its contents properly. When the applicant asked the passenger to take the bag to a table where it could be opened and inspected, the passenger responded by screaming for one or two minutes that he was 'late for his plane'. The passenger was taken to a table, and was asked to open the bag. Thereupon, the passenger searched through the bag, removed a can from it, and sprayed the applicant in the face. The passenger then grabbed the bag and boarded the plane. According to the applicant, the incident occurred in the presence of Mr Poskus and Mr Richardson, both of whom failed to intervene to assist her.

16 The judge did not accept that the applicant's account of that incident was correct. His Honour considered that if such an event, as described by the applicant, had occurred, both Mr Poskus and Mr Richardson would have been able to recall it, which they did not. Further, if that event had occurred, the security officials present would have required the Australian Federal Police to intervene, and that did not take place. By contrast, the judge considered Mr Poskus and Mr Richardson both to be 'impressive and thoughtful witnesses'. His Honour accepted their evidence. His Honour also noted that it was significant that the applicant did not mention the use of the aerosol can to Dr Gorgioski when she saw him later on the same day.[4]

17 While the judge did not accept the applicant's version of the incident, his Honour did accept that an incident occurred. His Honour was satisfied that there was 'some form of acrimonious exchange' between the applicant and a passenger,[5] but it did not occur in the manner related by the applicant. His Honour held therefore that there was no breach of duty by the respondent to the applicant. In particular, no inference of negligence could be drawn on behalf of the employer arising simply from a dispute between a member of a security team and a passenger.[6]

18 In respect of the 'lady with the papers incident' on 18 August 2002, the applicant had given evidence that, on that day, a female passenger came to the screening point pushing a person in a wheelchair. She was carrying a jacket and some papers. The applicant was operating the pedestrian scanner and the handheld wand for scanning passengers. When the passenger went through the screening machine on a number of times, it 'beeped', causing the passenger to become upset. The applicant asked the passenger to put down her jacket and hand over the papers, in order that she could be scanned with the wand. The passenger commenced to yell at the applicant, and threw her papers on the floor. She then pushed the applicant in the stomach, causing her to 'bend a little back'. The applicant claimed that her supervisor, Mr Lowe, was present, but he did not intervene to prevent the assault. She stated that she became very upset as a result of the incident, and went to the lunch room in tears. She claimed that Mr Lowe then entered the room, and required her to return to her duties, notwithstanding that she was emotionally distressed.

19 The respondent called Mr Lowe, who gave evidence that he did not recall witnessing the incident. In re-examination, he said that if such an incident had occurred in his presence, he would have intervened immediately, and he would have also pressed the emergency duress button. The respondent also called Mr Poskus, who gave evidence that, after being told of the incident, he watched a closed circuit television video of the incident within 20 minutes of being notified of it. Mr Poskus' recollection of that video was that there had been some sort of interaction between the applicant and a male passenger who had passed through the metal detector. Mr Richardson gave evidence that he only heard about the incident some days later. He stated that the security points were fitted with duress alarms, so that if any such incident had occurred, the alarm would have been set off, and the Australian Federal Police would have been required to respond as soon as possible.

20 The judge found that there were a number of internal inconsistencies in the applicant's account of the incident. In addition, her evidence was contradicted in detail by the evidence of Mr Lowe and a report that he filed on that day. A report by another security guard, Mr Beling (who was not called as a witness), confirmed that a passenger did push the applicant in the stomach, but that it was, at best, a 'mild push' that resulted in the applicant responding to the passenger that she was doing her job. The judge accepted that Mr Poskus probably watched a tape of the incident, although his observations of the CCTV video had some shortcomings. The judge accepted that Mr Poskus did not observe a push that caused the applicant to move backwards or fall. The judge also noted that the applicant did not report any mistreatment of her by the respondent, she simply walked off the job. When she saw Dr Gorgioski later that afternoon, she did not mention Mr Lowe or any other employee of the respondent treating her badly during or after the incident.[7]

21 In his reasons, the judge stated that he had no confidence in the applicant's reliability as a witness as to the event. He considered that she was '... prone to blowing any minor incident out of all proportion to the point where she has now convinced herself as to the accuracy of her account'.[8] The judge was satisfied that there was an incident involving a female passenger, which resulted in the applicant being pushed 'mildly' in the stomach by the passenger. As a result, she became particularly upset and left her work station. The judge found that the applicant was '... comforted, rather than mistreated, by Mr Lowe'.[9]

22 The judge concluded that there was no breach of duty by the respondent. The incident was spontaneous, which could not have been avoided by the exercise of reasonable care by the respondent. To mitigate against the possibility of disagreements between the respondent's staff and passengers, the respondent had provided at least one member of management staff on the floor to supervise them and in their dealings with the public. In the event, Mr Lowe was in reasonable proximity to the applicant when the incident occurred. Accordingly, the judge was satisfied there was an appropriate amount of supervision provided by the respondent, and that there was no lack of training by the respondent of its employees.[10]

23 In respect to the return to work events (between December 2002 and March 2003), the applicant alleged that she was subjected to ridicule, name calling, and mocking by her co-workers at the International Terminal, to which she was assigned when she had returned to work on limited hours following the earlier two incidents. She claimed that the respondent's management had failed to prevent, or respond adequately to, the bullying and harassment of her by her fellow employees. The applicant, in her evidence, stated that she repeatedly requested her managers, Mr Richardson and Mr Poskus, to relocate her back to her previous station at the Qantas Domestic Terminal. However, both Mr Richardson and Mr Poskus in their evidence stated that no complaint of that kind was made to them by the applicant.

24 The judge reviewed the evidence relating to the steps taken by the respondent in respect of the applicant's return to work. His Honour considered that the evidence revealed that there had been 'detailed, indeed exhaustive, consultation' between the respondent's employees concerning her return to work, and that she was assigned to the Qantas International flight to Los Angeles, because there was a high level of supervision on that flight, and the passengers had already been checked through immigration control and through original screening checks. The judge noted that the applicant's return to work program had been closely monitored by Ms Hunt and Ms Suares, the respondent's return to work officer. Ms Hunt was unable to be located for the trial, but her correspondence, and the evidence of Ms Suares, demonstrated that no complaint about bullying or harassment was made by the applicant to the respondent between December 2002 and March 2003.[11]

25 The judge considered that the allegations, made by the applicant concerning bullying and harassment, were vague and unsubstantiated. The judge regarded the applicant's credibility as 'wanting' on issues relating to her interaction with staff and passengers, and his Honour was not prepared to accept her account of the allegations relating to the circumstances of her return to work. His Honour accepted 'without hesitation' the evidence of Ms Suares and Mr Poskus, each of whom he regarded as credible witnesses. His Honour considered that the objective facts did not support, and indeed disproved, the applicant's account. His Honour regarded the absence of any complaint, by the applicant, about bullying or harassment, to Mr Poskus, Ms Hunt, Ms Suares, Dr Wahr and Dr Gorgioski, as 'telling'.[12] The judge then stated:

In any event, it is difficult to see how bullying or harassment could have occurred. Ms Taseska was at work for a maximum of eight hours (it was often less) a week and her workplace duties were varied and closely supervised. Indeed, the gist of Ms Taseska's complaints at trial related to where she was re-deployed, with the alleged bullying running a distant second.[13]

26 The judge concluded that the respondent had behaved in a totally reasonable fashion in endeavouring to look after Ms Taseska on her return to work. His Honour found that there was no bullying or harassment of her, and therefore no breach of duty by the respondent.

27 It is convenient to deal, first, with the application for leave to appeal against the decision of the judge in respect of the first proceeding, and the appeal, if leave is granted. In her application, the applicant relies on ten grounds, that may be summarised as follows:

(1) Ground 1. The judge erred in failing to accede to the applicant's application for an adjournment of the trial on the first day of the trial, on the basis that the applicant had not had access to or been provided with documents necessary for her to prosecute her claim.

(a) The respondent failed to notify the applicant as to the witnesses to be called in the proceeding.

(b) The respondent falsely claimed that it could not locate Ms Karen Hunt so that she was not available as a witness in the proceeding.

(c) The respondent failed to produce the whole of the Austin Hospital file and work records contained in it were missing.

(3) Ground 3. The conclusions by the judge were inconsistent, in that his Honour found, in the second proceeding, that there was no sufficient staff and training of staff, whereas in the first proceeding the judge found that the respondent did provide sufficient staff in respect of the duties performed by the applicant.

(4) Ground 4. The judge failed to take into account documents tendered by the applicant.

(5) Ground 5. The judge relied on the decision of the High Court in Koehler v Cerebos (Aust) Ltd,[14] which was distinguishable from the applicant's case in the first proceeding.

(6) Ground 6. The judge erred in relying on the evidence of Mr Anthony Poskus, in respect of the 'lady with the papers incident' on 18 August 2002.

(7) Ground 7. The judge erred in concluding that the applicant had not told Ms Karen Hunt of the bullying that was occurring at work, by failing to take into account a report dated 13 March 2003 compiled by Ms Hunt.

(8) Ground 8. The judge's findings of fact in relation to the credibility of the applicant were inconsistent.

(9) Ground 9. The judge erred in finding that the applicant was not subjected to bullying or harassment on the ground that she was at work for a maximum of eight hours per week.

(10) Ground 10. The judge failed to take into account that documents were being withheld from the applicant by her former lawyers.

28 In order to be granted leave to appeal, the applicant must demonstrate that the grounds of appeal relied on by her have a 'real' as opposed to a 'fanciful' prospect of success. In Kennedy v Shire of Campaspe,[15] Whelan and Ferguson JJA stated:

Naturally, there will be some cases where the prospects of the appeal are strong, others where the prospects are weaker but it cannot be said they are fanciful, and others where the prospects are fanciful. For the purposes of leave, it is only necessary to distinguish between those whose prospects are real and those whose prospects are fanciful. There is no bright line that divides the two. Nor is it useful to devise other categories using terminology deployed in other situations.[16]

29 The applicant relies on two points in support of ground 1. First, she contends that the respondent withheld documents from her that were of importance to her case. She raised the matter with the judge on the first day of the hearing, 8 February, and handed to his Honour a report by a Mr Paul Lee dated 27 March confirming that those documents had been withheld from her. Secondly, before the commencement of the trial, the judge was made aware by the applicant that her former lawyers had a lien on her file and her documents, and that she was forced to proceed with the case without her documents, and by relying on the respondent's Court Books. In those circumstances, it was submitted that the judge should have adjourned the trial, or, alternatively, he should have required that the respondent and the applicant's former lawyer supply all of the documents which she contended had been withheld from her.

30 In response, the respondent pointed out that, in the course of the trial, the applicant tendered a large number of documents, ten of which comprised bundles of documents. The applicant has not specified any documents which might have been of assistance to her, and which were not available to her at the trial. The documents referred to by the applicant, in support of her application for an adjournment of the trial on the first day, related to settlement offers made by the respondent in the course of the mediation in the proceedings, and they would not have been admissible or relevant in the trial.

31 The decision of a judge, to grant or refuse an application for an adjournment, is discretionary.[17] Accordingly, the applicant must demonstrate, for the purpose of this application, that there is a tenable argument that the judge made a relevant error in the exercise of his discretion to refuse the application for an adjournment on the first day of the trial.

32 In our view, both points relied on by the applicant in support of ground 1 are without substance.

33 On the first day of the trial before his Honour, 8 February 2016, the applicant applied for an adjournment on the basis that she had not been supplied with documents by the respondent that were referred to in an order made by the Associate Justice in respect of the mediation in the matter. Those documents related to offers of settlement made by the parties between March 2011 and September 2013. In the 'Other Matters' section of her Order, the Associate Justice made it clear that she had directed that those documents be made available to the parties in order to facilitate discussions at the forthcoming mediation. In response to that direction, the respondent's practitioner swore an affidavit disclosing four documents relating to correspondence between the parties.

34 At the trial, senior counsel for the respondent informed the judge that, on his instructions, all documents relating to the offers had been discovered. Based on those matters, the judge rejected the application brought by the applicant. His Honour observed, correctly, that there was no basis upon which to adjourn the trial. His Honour also noted that, in light of the history of the case, it was important to proceed to trial and judgment as soon as practicable. In particular, his Honour considered that the documents, referred to by the applicant, were not material to the proceeding and to the issues that his Honour would need to determine in the trial.

35 The reasons given by the judge, for his ruling, were impeccable. The documents, sought by the applicant, were not relevant, nor would they have been admissible, in the trial. The applicant contended (before this Court) that if she had the other documents, she would (or might) have been able to settle the first proceeding. However, that consideration does not in any material respect constitute an error in the conduct of the proceeding by the judge. In any event, senior counsel for the respondent told this Court that all offers made by the respondent to resolve the first proceeding had expired before the commencement of the trial before his Honour.

36 Thus, the first point, raised by the applicant in support of ground 1, is without substance.

37 Equally, the second point, in support of ground 1, does not have any real prospect of success. On the third day of the trial, the applicant tendered a number of documents from the Court Book that had been filed on her behalf by her previous solicitors. In the course of that process, a question arose as to the provenance, and admissibility, of one of the documents sought to be relied on by the applicant. In the course of discussion about that document, the applicant stated that she did not have any documents in her possession except for the Court Book, because her previous solicitor had refused to provide them to her. She told the judge that she had obtained a copy of the Court Book from the respondent.

38 Notwithstanding that difficulty, it is apparent that the applicant was able to sufficiently present her case, and indeed, as observed by the respondent, she tendered a number of documents. The applicant has not specified any documents which might have been of assistance to her, but which were not available to her. Apart from the issue raised by the applicant on the first day of the trial before the judge, the applicant did not otherwise contend at trial that she was not able to present her case adequately due to the absence or lack of any particular documents. In those circumstances, the second point relied upon by the applicant in support of ground 2 is without sufficient substance to entitle the applicant to leave to appeal in in respect of it.

39 The applicant relied on three points in support of ground 2. First, she noted that before the commencement of the trial she had not been supplied by the respondent with a list of the witnesses, who the respondent intended to call at trial. She submitted that the respondent was required to provide her with such a list. In support of that contention, the applicant relied on Rule 42.05(2) of Chapter 1 of the Supreme Court (General Civil Procedure) Rules 2015. Secondly, the applicant contended that Ms Karen Hunt was a relevant witness in the trial. Ms Hunt was not called to give evidence, because the respondent stated that she could not be located. The applicant has tendered, on this application, a computer printout of a profile of a Ms Karen Hunt, that describes her as the expert services manager of TAL for the period December 2013 to June 2015. It was submitted that accordingly Ms Hunt could and should have been subpoenaed and called to give evidence on behalf of the respondent. Thirdly, the applicant has claimed that the Austin Hospital records, produced by the respondent at trial, had been interfered with, and that the respondent had 'hidden' parts of the records and not produced them.

40 In response, the respondent pointed out that, at trial, evidence was called from the respondent's solicitor as to the inability of the respondent to locate Ms Hunt. The applicant declined the opportunity to cross-examine the solicitor, and made no comment or complaint about the absence of Ms Hunt as a witness in the trial. The respondent has further pointed out that the Austin Hospital file was produced to the Court, in answer to a subpoena, in 2012. Substantial documents from that file were tendered to the Court by the respondent. (Exhibit D 4). The applicant had access to the documents. The applicant has failed to demonstrate that the respondent interfered in any way with the documents that were produced pursuant to the subpoena.

41 In our view, the applicant has failed to demonstrate a real, as distinct from fanciful, prospect of success in respect of any of the matters relied on by her in support of the second ground.

42 In respect of the first point relied on by the applicant, the obligation of a party, under Rule 42.05, to serve on the other party a copy of any subpoena served in a case, only applies to a subpoena which requires the production of documents to the court. It does not apply to a subpoena requiring a person to attend court for the purpose of giving evidence.

43 In respect of the absence of Ms Hunt as a witness, on 17 February, Ms Georgina Hedges, a principal of the respondent's solicitors, gave evidence before the judge as to the efforts that had been made on behalf of the respondent to locate Ms Hunt. In particular, the solicitors had instructed investigators for that purpose, but the investigators were unable to find her. The respondent's solicitors had identified a former employer of Ms Hunt, and had contacted that employer, but that organisation no longer had any information as to her whereabouts. After Ms Hedges had given her evidence in chief, the respondent was offered the opportunity to cross-examine her, but she declined to do so. In those circumstances, the uncontradicted and unchallenged evidence before the judge provided an ample explanation for the fact that the respondent had not been able to call her to give evidence.[18] The fact that the applicant has been able to identify an organisation that might have been an employer of Ms Hunt for the period between 2013 and 2015, does not contradict, in any relevant sense, the evidence given by Ms Hedges at trial.

44 The applicant has not specified any document or documents, that, she alleges, were removed by the respondent from the Austin Hospital file that was produced to the Court, and which might have assisted her in her case in the first proceeding. The applicant did not raise any such issue before the trial judge. There is no substance to the third point relied on by the applicant.

45 For those reasons, we would refuse leave to appeal on ground 2.

46 Ground 3 relates to the 'lady with the papers' incident on 18 August 2002. It is directed to the findings by the judge that the respondent had acted reasonably, that the respondent had provided sufficient staff and supervision in respect of the security staff's dealings with the public, and that there was no lack of training by the respondent of its employers in that regard. The applicant submitted that that finding is inconsistent with the judge's conclusion, in the second proceeding, that the respondent had failed to exercise reasonable care in respect of the work performed by the applicant on the scanner, by failing to ensure that more employees were rostered on during the busier periods, and by failing to put in place additional training to instruct guards which tasks they needed to prioritise.[19]

47 There is no substance to the point relied on by the applicant. In particular, there is no arguable point that there are any relevant inconsistencies between the two findings referred to by the applicant. The conclusion by the judge in the second proceeding, as to the lack of sufficient employees, and lack of training, related to the specific physical tasks that the applicant was required to perform when monitoring the line machine through which bags passed while on the moving conveyor. In that respect, the judge had regard to evidence that the employee, performing the role of the scanner, was, from time to time, required to fulfil several tasks at the one time during the busy periods, particularly when other members of the security team, in which she worked, were distracted by being required to attend to other duties, such as removing a suspicious bag.[20] It was in that respect that the judge concluded that the respondent had failed to ensure that sufficient employees were rostered on during the busier periods, so that the scanner operator (the applicant) was able to perform that task without the need to stretch and manhandle bags in the event of the absence of another member of her team. The judge also found that, in that specific respect, the respondent had failed to instruct its security guards as to the tasks which were to be prioritised.[21]

48 On the other hand, the finding by the judge, relating to the 18 August 2002 ('lady with the papers') incident, related to a different aspect of the applicant's work with the respondent. The judge accepted that it was foreseeable that there might be altercations between the respondent's security staff and members of the public and passengers. His Honour found that, in that respect, to mitigate that possibility, the respondent had provided at least one member of its management staff on the floor to supervise security staff in their dealings with the public. Thus, his Honour concluded that there was sufficient supervision, and there was no lack of training by the respondent of its employees, in that respect.[22] That finding by the judge related to an aspect of the applicant's work that was entirely different to, and distinct from, that aspect which caused her to suffer the injury to her knee that was the subject of the second proceeding.

49 In oral submissions, the applicant contended that the finding by the judge, that there was no lack of training by the respondent of its employees in their dealings with the public, was contrary to the evidence. She relied on evidence of Mr Poskus, in cross-examination in which the witness stated that, to his recollection, training, relating to dealing with aspects of 'low level' conflict with passengers, was provided by the respondent to its employees between possibly 2003 and 2005. The applicant focused on that evidence to submit that there had not been any relevant training to staff at the time of the incident in question.

50 The applicant's contention, in this respect, ignores a number of other parts of the evidence, by witnesses called on behalf of the respondent, in respect of the training given to members of the security staff employed by the respondent. In his evidence in chief, Mr Poskus described to the judge, in general terms, the type of training that was given to the respondent's staff at the commencement of their employment. In addition, a training manual ( a 'blue book'), that was provided to all employees of the respondent, was tendered in evidence. Mr Richardson gave evidence that the respondent had a system of providing ongoing training to its staff. Specifically, he stated that after September 2001, the respondent had provided its staff with specific training as to how to deal with abusive passengers. In such circumstances, staff were advised to obtain a witness and to notify the senior guard, who would then try and deal with the situation. In addition, staff were aware of the availability of a duress button which could be used by them. In those circumstances, there was adequate evidence to support the judge's finding that there was no lack of training in respect of the circumstances relevant to the incident in question.

51 For those reasons, we are not satisfied that the applicant has a real, as distinct from fanciful, prospect of success in respect of ground 3.

52 The applicant relied on two points in support of ground 4.

53 First, in her written case, the applicant stated that although she tendered a large number of documents in evidence, the judge failed to consider all of them that were important to the success of her case. In oral submissions, the applicant stated that the documents, to which the judge did not advert, were emails by Mr Poskus to Ms Suares to the effect that the applicant had been given three days off after the lady with the papers incident.

54 That point, made by the applicant, is without any real significance. The judge was satisfied that an incident did occur between the applicant and a passenger on 18 August 2002.[23] However, his Honour was not satisfied as to the applicant's version of that incident, and, in particular, her claim that she was pushed firmly in the stomach by the passenger, and that, subsequently, she was mistreated by Mr Lowe. The applicant did not point to any email, or other document, tendered before the judge, which the judge did not specifically refer to in his reasons for judgment, and which might have affected that conclusion by the judge.

55 The principle, that a judge should provide adequate reasons for his or her decision, does not require a judge to deal with each item of evidence in the trial. Rather, the judge must expose sufficiently the path of reasoning for the decision reached, and must, in particular, deal with the substantial points of evidence that have been raised, and explain why such evidence has not been accepted.[24] In the present case, the reasons provided by the trial judge were comprehensive and thorough. The applicant has not pointed to any deficiency in those reasons relevant to the decision reached by the judge.

56 Under ground 4, the applicant has also submitted that the judge erred in concluding that the evidence of Mr Lowe contradicted the applicant's account of the lady with the papers incident. In his reasons, the judge stated:

Ms Taseska said at trial that Mr Lowe was standing directly behind her during the incident. However, the incident simply did not register with Mr Lowe, who said that if such an incident had occurred in his presence, he would have intervened.[25]

57 The applicant has submitted that that conclusion, by the judge was erroneous. She referred to evidence by Mr Lowe in response to the following question:

If you did have one of your staff members visibly upset as a consequence of something happening with a passenger, what would you do? What would be your response? ... I would try and speak to them or one of - not Silvana's particular person but a friend - a female that wanted to talk to. There were plenty of females there. So someone would be delegated to talk to the person to see what their problem was.

58 The applicant's reliance on that evidence is misplaced. That evidence was directed to the complaint by the applicant that, subsequent to the lady with the papers incident, when she was upset in the lunch room, Mr Lowe required her to return to her post to resume her duties. The conclusion by the judge, that if the incident had occurred as described by the applicant, Mr Lowe would have intervened, was based on evidence by Mr Lowe, in re-examination, that if he had observed the incident as described by the applicant, he would have '... pulled out all stops' to help her, and he would have pressed the emergency button. That evidence adequately supports the conclusion by the judge that the account given by the applicant, of the lady with the papers incident, was contradicted by the testimony of Mr Lowe.

59 For those reasons, there is no substance to ground 4, and we would refuse the applicant leave in respect of it.

60 Ground 5 relates to the third aspect of the first proceeding, the 'return to work events'. In support of ground 5, the applicant referred to the reference by the judge to the decision of the High Court in Koehler v Cerebos (Aust) Ltd,[26] and submitted that that case could be distinguished from the present case. In particular, she submitted that the respondent could foresee that she would sustain injury on her return to work program. The applicant submitted that the judge failed to take into account evidence that, on her return to work in December 2002, she was placed in a worse position, because the employer was not able to find any other position available for a four hour shift. She contended that the position to which she was assigned was inappropriate, because she was bullied and mocked by staff members, and she was required to deal with more passengers, carrying out thorough hand searches of the hand luggage, and 'pat downs' of the passengers, before they boarded the flight bound for the United States of America.

61 As we have noted, the judge rejected the applicant's evidence that she had been subjected to bullying and harassment when she was assigned, on her return to work in December 2002, to the Qantas International flight to Los Angeles. In addition, the judge rejected the suggestion that the conduct of the respondent, in placing the applicant in that position, was unreasonable. His Honour then stated:

... In my view, Chubb (and particularly, Mr Poskus and Ms Suares), did everything it could and perhaps more to place Ms Taseska in a less stressful work environment given her previous confrontations with passengers in domestic security. It was clear from the RTW material and his own testimony, that Mr Poskus was conscious of keeping her away from the stress of the domestic airport environment. He should be complimented, not criticised, for the efforts made to find an appropriate area for Ms Taseska to return on limited duties.

The High Court made it clear in Koehler v Cerebos (Aust) Ltd that there are limits to an employer's obligations in relation to an employee's working environment. Here, I think that Chubb behaved in a totally reasonable fashion in endeavouring to look after Ms Taseska. The company was faced with an employee who had become extraordinarily dissatisfied with her working environment and was suffering from considerable anxiety. I am of the view that whatever Chubb management did would have been the subject of complaint by Ms Taseska - even if it was exemplary - which it was.[27]

62 In our view the reference by his Honour to the decision of the High Court in Koehler, and his statement of the relevant principles, were correct and not misplaced.

63 The duty of an employer to an employee is not absolute; it is a duty to exercise reasonable care to protect the employee from reasonably preventable risks of harm. As demonstrated by the decision in Koehler, the content of the duty is shaped, and informed, by the nature of the duties that an employee contracts to undertake with the employer.

64 Further, the judge's conclusion, that the respondent acted entirely reasonably, in respect of the applicant's return to work, was well supported by the evidence, in particular of Mr Poskus and Ms Suares, that was accepted by the judge.

65 In her evidence in chief, the applicant suggested that the work, to which she was assigned on her return, was inappropriate because it was intense, and she had to check each bag of each passenger before they boarded the international flight. The plaintiff also stated that she was subjected to teasing and bullying by her fellow employees. In cross-examination, the applicant agreed that the work, that she performed at the International Terminal, did not involve the level of stress that arose from working at the Qantas Domestic Terminal, where passengers became irritated when they were held up at the scanner. However, she said that she wanted to return to her old work, and she asked Mr Richardson and Mr Poskus if she could do so.

66 Mr Poskus gave detailed evidence about the steps taken by the respondent in finding an appropriate position for her on her return to work in December 2002. He said that he had come to the view that the placement of the applicant at the International Terminal, in the position responsible for the flight to the United States, was most appropriate, because it did not involve the pressures that were part and parcel of working at the Qantas Domestic Terminal. In particular, by the time that the passengers reached the International Terminal, they had already been screened and their carry-on luggage had been checked. The further check of the luggage, conducted by the applicant and her co-workers, was a requirement of the United States. Mr Poskus stated that the applicant would be working in a structured situation, with a team, and subject to appropriate supervision, in her new role.

67 Ms Suares also gave evidence. She was employed as the return to work officer of the respondent. A large bundle of return to work documents in respect of the applicant was tendered in evidence. Ms Suares did not have any independent recollection of the applicant's return to work. However, she confirmed that the respondent had used an independent rehabilitation company to assist with the applicant's return to work.

68 The judge had the advantage of observing the applicant, Mr Poskus and Ms Suares in evidence. He accepted the evidence of Mr Poskus and Ms Suares. Based on that evidence, the judge was well justified in concluding that the respondent had behaved in an entirely reasonable fashion in its endeavours to place the applicant in a less stressful work environment on her return to work.

70 Ground 6 relates to the 'lady with the papers' incident on 18 August 2002. The applicant has submitted that the judge erred in finding that Mr Poskus was a credible witness, notwithstanding that (according to the applicant) he watched the 'wrong video' of the incident. The applicant has pointed out that the judge accepted that Mr Poskus watched the 'right video' and that (according to the applicant) Mr Poskus did not see the passenger push the applicant in the stomach, which is inconsistent with the judge's finding that he was satisfied that the applicant had been pushed in the stomach by the passenger.

71 The point made by the applicant in support of ground 6 is without substance. The judge did consider that Mr Poskus' evidence, as to his observations of the CCTV video, had some failings, but nevertheless he was persuaded that Mr Poskus probably watched a tape of the video. Contrary to the submissions made on behalf of the applicant, the judge in his reasons did not state that Mr Poskus did not observe a push by the passenger to Ms Taseska. Rather, his Honour noted that Mr Poskus '... did not observe a push that caused Ms Taseska to move backwards or fall - nor any altercation between Mr Lowe and Ms Taseska'.[28] That finding, by the judge, is consistent with his Honour's finding that there was a mild push by the passenger to Ms Taseska. In that respect, the judge was satisfied that the applicant had subsequently exaggerated her version of the incident, and that she was prone to inflating any minor incident out of proportion.[29]

72 In his evidence in chief, Mr Poskus described an incident, that he observed on the video, between the applicant and a passenger (who Mr Poskus described as a male), in which the passenger remonstrated with the applicant by raising his hands. The judge was entitled to accept that Mr Poskus did view the video of the incident in question, notwithstanding the deficiencies in his recollection of that incident.

73 In addition, Mr Poskus' evidence did not stand alone, in support of the respondent's case, in respect of the incident in question. As we have already noted, the judge considered that there were a number of internal inconsistencies in Ms Taseska's account. In addition, her account was contradicted in detail by the sworn evidence of Mr Lowe and his contemporaneous record of the events, which the judge accepted. The judge noted that Ms Taseska did not report any mistreatment by the respondent.

74 In those circumstances, there was adequate evidence to support the finding by the judge that, while there was an incident involving a female passenger pushing Ms Taseska mildly in the stomach, the incident did not occur in the circumstances claimed by the applicant.

76 Ground 7 is directed to the rejection by the judge of the third claim made by the applicant in the first proceeding, that she was subjected to bullying and harassment by her fellow workers when she returned to work on limited hours of 8 hours per week between December 2002 and March 2003. In support of ground 7, it is contended that the finding by the judge,[30] that the applicant had not told Ms Karen Hunt that bullying was occurring at work, was contradicted by a report of Ms Hunt dated 13 March 2003, that was tendered in evidence.[31]

77 There is no basis for that contention. As we have already noted, the judge found that the allegations made by the applicant, concerning bullying and harassment, were vague and unsubstantiated, and the judge regarded the applicant's credibility as 'wanting' on issues concerning her interaction with staff (and passengers).[32] Thus, the judge accepted 'without hesitation' the evidence of Mr Poskus and Ms Suares on that issue, regarding each of them as credible witnesses, whose evidence was corroborated by contemporaneous documentation. The judge further noted[33] that the objective facts did not support, but rather disproved, the applicant's case. In particular, his Honour referred to the absence of any complaint about bullying or harassment by the applicant to Mr Poskus, Ms Hunt, Ms Suares, Dr Wahr and Dr Gorgioski.

78 The applicant's submission on this application, in ground 7, focusses on one aspect of the judge's reasoning in rejecting the applicant's claim as to having been bullied and harassed in her employment. Further, the submission is without any basis. The report of Ms Hunt did not refer, at all, to any allegation or complaint made by the applicant of being bullied or harassed on her return to work. The report was quite thorough in summarising the matters which caused the applicant difficulty on her return to work. In particular, the report stated:

Ms Taseska reported continuing 'stress' when at work including concern for the lack of perceived support she receives from her colleagues. Ms Taseska reported she is scared to do bag checks at her RTW site, however is happy with scanning the passengers. Ms Taseska reported that in her four hour shift, she does approximately three hours of scanning, then is required to perform other duties which are reported as 'stressful'.

79 While that report does record the applicant as mentioning a lack of 'perceived support' from her colleagues, that is a very different matter to a complaint by her of bullying or harassment. The judge was clearly correct, on the evidence, in concluding that there was no complaint by the applicant to Ms Hunt (or to anyone else) about bullying or harassment. Accordingly, ground 7 must fail.

80 Ground 8 is concerned with the finding by the judge that the applicant was not a credible witness in respect of the claims made by her in the first proceeding. It is contended that that finding by the judge is inconsistent with his Honour's conclusion, in the second proceeding, that the applicant was a credible witness.

81 Ground 8 is based on a false premise. The judge did not in fact make an unqualified finding in the second proceeding that the applicant was a credible witness in respect of the injury that she claimed to have sustained to her knee on 16 November 2001. Rather, in the passage relied on by the applicant, the judge stated as follows:

... I do not regard Ms Taseska's account of this incident, at least in a general sense, as implausible. Whilst I have considerable reservations as to Ms Taseska's reliability as a witness in relation to the other aspects of her claim (which I shall set out in a moment), this account seems not only plausible, but is supported by Mr Richardson's evidence regarding the numerous tasks she was required to perform and the pressure that existed in carrying out the scanning task after September 2001. As I mentioned earlier, no other Chubb witness was prepared to say that the incident, she described, could not have happened.[34]

82 It is trite, but relevant, to observe that a tribunal of fact, including a judge sitting alone, is not required to accept, or reject, the evidence of a witness in its entirety. Rather, the tribunal may, and often does, find some parts of a particular witness's evidence to be credible, reliable or plausible, while other parts are lacking in sufficient credibility or plausibility to warrant acceptance. The finding by a judge that a witness's evidence is lacking in credibility in particular respects, even important respects, does not have the effect that that judge (or jury) may not find other aspects of the particular witness's evidence to be reliable and acceptable.

83 Further, in the second proceeding, the judge found that the applicant's account was plausible, because it was supported by the evidence of Mr Richardson, and by other objective evidence that the judge set out, in some detail, in his reasons.[35] By contrast, the applicant's evidence, as to the incidents and circumstances that she relied on in the first proceeding, was not supported by any objective evidence or other witness, but, indeed, was contradicted by some of that evidence.

84 In those circumstances, there was no inconsistency in the finding by the judge relating to the applicant's credibility. Ground 8 must accordingly fail.

85 Ground 9 concerns the rejection by the judge of the claim by the applicant that she was bullied and harassed by fellow employees of the respondent on her return to work in December 2002. Ground 9 is specifically directed to the passage from the judge's reasons, set out at paragraph 25 above,[36] in which the judge expressed the view that it was difficult to see how bullying or harassment could have occurred as the applicant was at work for a maximum of eight hours per week. The applicant submitted that bullying and harassment does not lose that quality even if it takes place over a short period such as eight hours per week.

86 That argument is based on a selective quotation from the reasons of the judge. The passage in the reasons, set out above, is to the effect that it was difficult to understand how bullying or harassment could occur, in circumstances in which the applicant was at work for a maximum of eight hours per week (and often less), her work duties were varied, and they were closely supervised. It was the combination of those three factors, and not simply the shorter working hours, that, justifiably, led the judge to have doubts as to whether the applicant could have been bullied or harassed on her return to work.

87 The applicant also submitted that the judge erred in finding that her work duties were closely supervised on her return to work at the International Terminal. The applicant submitted that that conclusion by the judge was contrary to the evidence.

88 Mr Poskus, in his evidence in chief, stated that he considered that the placement of the applicant in the International Terminal provided her with a more structured workload in which she was supervised. He said that the work that she performed was basically 'team based' with a supervisor present. He said that he had specifically appointed a person to be a supervisor because that person had strong leadership skills and he also had a leading hand or second in charge who could assist him. Specifically, he said that the international flight, to which the applicant was assigned, had a level of supervision that was specific to a very routine structure of operations that took place at that location. Based on that evidence, the judge was well justified in concluding that the applicant was closely supervised in the duties that she performed on her return to work at the International Terminal.

89 Further, the passage relied on by the applicant must be understood in the proper context of the judge's reasons. As we have already set out, the judge accepted that the applicant's return to work program was closely monitored by Ms Hunt and Ms Suares, and that no complaint of bullying was made to them between December 2002 and March 2003. Mr Richardson, the applicant's direct supervisor, had no recollection of any complaint of bullying by her. Significantly, no mention of bullying or harassment was made by the applicant to Dr Wahr or to Dr Gorgioski during that period. The judge noted that there was no rational basis for the applicant not to inform Dr Wahr or Ms Hunt, who were completely removed from the workplace, of such conduct, if it had occurred.[37] It was in that context that the passage in the judge's reasons, relied on by the applicant, is to be found. Thus, it is evident that the judge rejected the applicant's complaint of bullying and harassment, based on a number of factors.

90 No arguable error has been demonstrated in support of ground 9, and it must therefore be dismissed.

91 Ground 10 was concerned with the conclusion by the judge that there was no breach of duty by the respondent in respect of the altercation between the applicant and the passenger that occurred on 13 June 2002 (the spray can incident). In reaching that conclusion, the judge noted that the applicant bore the onus of proving the facts that gave rise to any breach of the respondent's duty of care, and that there was insufficient evidence to substantiate a breach of duty on behalf of the respondent.[38]

92 The applicant contended that that conclusion by the judge failed to take into account the fact that documents were being withheld from her by both the respondent and by her former lawyers.

93 The applicant did not identify any particular document or documents which might have been relevant to the proof by her of that aspect of her claim, or any other part of her claim, in the first proceeding, to which she did not have access. The substance of the applicant's complaint, in ground 10, is, basically, a repetition of grounds 1 and 2. For the reasons already stated, the ground is without substance, and we would not grant the applicant leave in relation to it.

Conclusions on the application for leave to appeal

94 For the reasons stated, we do not consider that any of the grounds, sought to be relied on by the applicant, have a real, as opposed to fanciful, prospect of success. We do not grant the applicant leave to appeal in relation to any of them.

95 Before departing from this aspect of the case, having read the transcript of the trial in the proceeding, it is appropriate to observe that the judge conducted the trial with perspicuous fairness to both parties, and particularly to the applicant. His Honour was at pains to ensure that the applicant, at each stage of the proceeding, fully understood her rights in the trial. Within the limits of his office, the judge assisted the applicant in the presentation of her case. In particular, his Honour, in effect, led evidence from the two medical practitioners who were called on behalf of the applicant, in order to ensure that all relevant evidence was adduced from them. Further, the judge's reasons for decision were thorough and comprehensive, and were expressed in terms that a lay litigant, such as the applicant, could well understand.

96 As noted earlier in these reasons, there are three other applications before the Court.

97 The first application is by the applicant for an order staying the costs payable by her in respect of the first proceeding. In light of the outcome of the application for leave to appeal, that application is no longer effective.

98 The second application is by the respondent that the order, that the respondent pay the applicant's costs in the second proceeding, be stayed. It was common ground before us that that application should be dealt with by the trial judge, and not by this Court.

99 The third application is by the applicant to set aside paragraph 2 of the order made by the judge on 23 June, that the costs payable by the respondent to the applicant in the second proceeding be set off against the costs payable by the applicant to the respondent in the first proceeding. The applicant has submitted that the judge had no power to make such an order. We do not agree. The two proceedings were interconnected, and it was appropriate that the judge set off the costs payable by the respondent in the second proceeding against the costs payable by the applicant in the first proceeding.

100 For the reasons set out above, we have therefore reached the following conclusions in respect of the applications before us:

(1) The application by the applicant for leave to appeal from the judgment and orders of the Honourable Justice J Forrest J dated 20 May 2016, in proceeding no S CI 03100 of 2011, be dismissed.

(2) The application by the applicant for a stay of the costs order, made by Justice Forrest on 20 May 2016 in those proceedings, be dismissed.

(3) The application by the respondent for a stay of the order, by Justice Forrest, that the respondent pay the applicant's costs in proceeding no SCI 05455 of 2012, be referred to his Honour for determination.

(4) The application by the applicant dated 29 July 2016, to set aside paragraph 2 of the order by Justice Forrest dated 23 June 2016 in proceeding no S CI 03100 of 2011, be dismissed.

[1] Taseska v MSS Security Pty Ltd [2016] VSC 252 ('Reasons').

[14] [2005] HCA 15; (2005) 222 CLR 44.

[15] [2015] VSCA 47.

[16] Ibid [13]; see also Savino v Schieven [2015] VSCA 67, [47]; Glass (a pseudonym) v Chief Examiner [2015] VSCA 127, [81]; Marriner v Australian Super Developments Pty Ltd [2016] VSCA 150, [21].

[17] See for example Bloch v Bloch [1981] HCA 56; (1981) 37 ALR 55, 58-9; Sali v SPC Limited [1993] HCA 47; (1993) 116 ALR 625; El Haji v Chief Executive Officer of Customs [2003] VSCA 217, [14] (Buchanan JA).

[18] Cf Jones v Dunkel (1959) 101 CLR 298.

[24] See for example Hunter v Transport Accident Commission & Anor [2005] VSCA 1, [21] (Nettle JA); Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317, [37]-[38] (Ashley JA); Dressing v Porter [2006] VSCA 215, [26] (Ashley JA).

[26] [2005] HCA 15; (2005) 222 CLR 44 ('Koehler').