Drane v South Sydney City Council [2000] NSWADT 89 (6 July 2000)

Last Updated: 24 July 2000

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL EQUAL OPPORTUNITIES DIVISION

CITATION: Drane v South Sydney City Council [2000] NSWADT 89

PARTIES: APPLICANT

Susan Drane

RESPONDENT

South Sydney City Council

FILE NUMBERS: 104 of 1998

HEARING DATES: 02/07/99, 27/08/99, 13/12/99, 14/12/99

SUBMISSIONS CLOSED: 14/12/1999

DECISION DATE: 06/07/2000

BEFORE: Rice S - Judicial MemberMcDonald O - MemberEdwards K - Member

LEGISLATION CITED: Anti-Discrimination Act 1977

CASES CITED: Qantas Airways Ltd v Gubbins and Others (1992) 28 NSWLR 26

Grant v John Grant & Sons Pty Ltd [1954] HCA 23; (1954) 91 CLR 112

APPLICATION: Sex Discrimination - Employment

Victimisation

MATTER FOR DECISION: Application under section 111 (1)

APPLICANT REPRESENTATIVE: D Russell, barrister

RESPONDENT REPRESENTATIVE: M Joseph QC, barrister

ORDERS: 1. Pursuant to Section 111 (1) of the Anti-Discrimination Act the complaint of discrimination on the ground of sex is dismissed, for the reason that its prosecution is barred by a release given by the complainant to the respondent on 15 September 1997.

2. Pursuant to Section 111 (1) of the Anti-Discrimination Act the complaint of victimisation is dismissed, for the reason that its prosecution is barred by a release given by the complainant to the respondent on 15 September 1997

3. Each party shall pay their own costs.

Reasons for Decision:

REASONS FOR DECISION

SUMMARY OF DECISION

1 The Tribunal has decided that Ms Drane signed a deed of release exercising her own will. She was not subject to duress or undue influence. She knew the effect of the deed at the time she signed it.

2 The Tribunal says that the deed of release executed by Ms Drane on 15 September 1997 is a complete bar to her conducting these proceedings.

3 The Tribunal dismisses Ms Drane's complaints of discrimination and victimisation, and orders that each party shall pay their own costs.

CHRONOLOGY

4 Ms Susan Drane is the complainant. On 27 February 1997 she complained to the Anti Discrimination Board against South Sydney City Council, the respondent. She alleged, under the Anti Discrimination Act 1977 (NSW) ("the ADA"), discrimination on the grounds of sex in the course of her employment with SSCC.

5 Ms Drane's employment with SSCC was terminated on 9 April 1997. On 23 April she commenced proceedings in the Industrial Relations Commission of NSW alleging that the termination was unfair.

6 By letter dated 2 June 1997 Ms Drane advised the Anti-Discrimination Board of her "wish to withdraw (her) discrimination complaint against South Sydney Council, due to current action in the Industrial Relations Commission."

7 On the same day, 2 June 1997, Ms Drane signed and filed in the Industrial Relations Commission an undertaking in the form of Form 11 as required by Section 90 of the Industrial Relations Act 1996 (NSW). That undertaking was "not to proceed for redress under, or seek an inquiry under the NSW Anti Discrimination Act 1997/GREAT relating to my dismissal or threatened dismissal on 9/4/1997".

8 By letter dated 1 August 1997 Ms Drane advised the Anti-Discrimination Board that she had "had further legal advice that (she) can have a case lodged with the Anti-Discrimination Board and action in the Industrial Relations Commission." She wrote "I therefore wish to re-activate my claim but do not wish any further action until after my termination case against South Sydney Council goes before the Industrial Relations Commission from 15 September 1997."

9 By letter dated 10 August 1997, Ms Drane made a further complaint to the Anti-Discrimination Board against SSCC, alleging that her "dismissal was breach of section 50(a) of the NSW Anti Discrimination Act". This was a complaint of `victimisation'.

10 On 15 September 1997, in the course of the proceedings in the Industrial Relations Commission, Ms Drane signed a deed of release. The deed of release evidences an agreement between Ms Drane and SSCC by which Ms Drane released SSCC from any claim that she may have had against it, including "any action pursuant to the Anti Discrimination Act 1977 (NSW)". SSCC agreed to, and did, pay Ms Drane $10,000. Ms Drane and SSCC agreed to discontinue the proceedings in the Industrial Relations Commission.

11 On becoming aware of the existence of the deed of release, the President of the Anti Discrimination Board formed the view that he was unable to conciliate either complaint, and he made a referral to the then Equal Opportunity Tribunal under section 94 (1) of the ADA.

12 In summary, on the same day that Ms Drane signed the section 90 undertaking in the Industrial Relations Commission, she withdrew from the Anti Discrimination Board her complaint of discrimination on the grounds of sex. She subsequently purported to `reactivate' that complaint, and made a further complaint of victimisation. On the day that Ms Drane signed the deed of release in the Industrial Relations Commission she had two current complaints with the Anti Discrimination Board, one relating to the terms and conditions of her employment and one of victimisation.

Jurisdiction

13 The jurisdiction of this Tribunal arises from the operation of section 96 and, in this case, section 94 of the ADA.

14 When referring a complaint to the Tribunal the President also refers to the Tribunal `a report relating to any inquiries made by the President into the complaint' (s94(1)).

15 The terms of the Presidents referral are the key to the Tribunal's jurisdiction. Unfortunately but not fatally the referral and the document supporting it are ambiguous in this case.

16 In the President's report is the President's referral letter of 18 August 1998. The letter says "On 27 February I received a complaint . . .alleging discrimination on the ground of sex. On 13 August 1997 I received further correspondence from Ms Drane alleging victimisation from her employer". The President is here describing two separate complaints. He goes on to say, however, "the complaint (sic) could not be conciliated. As a result I am now referring the complaint (sic) . . . A report of my investigation of the complaint (sic) is attached".

17 The attached report of the President's investigation includes at Tabs 1 and 4 the separate letters of complaint from Ms Drane. In the President's first letter to SSCC, dated 31 March 1998 at Tab 6, the President says "I have received complaints (sic) from Ms Drane . . ." In the same paragraph however he says "Details of the complaint (sic) are attached". Attached to that letter are documents preceded by a title page headed "Annexure A the complainant has provided the following allegations of sex discrimination. . .", and documents preceded by a title page headed "Annexure B the complainant has provided the following allegations of victimisation . . .".

18 The President's letter goes on to say that "the complaint (sic) appears to come under sections 24 and 25 of the Anti-Discrimination Act . . . ", and that "the complaint (sic) also appears to come under section 50 of the Anti-Discrimination Act . . . ".

19 Clearly the complaint of sex discrimination under sections 24 and 25 of the ADA, and the complaint of victimisation under section 50 of the ADA, were both raised with SSCC as part of the President's investigation.

20 The ambiguity in the President's referral relates to the complaint under section 50, which would necessarily be a further or additional complaint and could not, despite the wording of the President's letter, be a further particular of one complaint. Clearly it was within the contemplation of the President to refer the complaint of victimisation, although the letter of referral seems to be mistaken, or poorly worded, in characterising it as part of an existing complaint. The President's investigations treated it, properly, as a separate complaint although not consistently so.

21 As a formal matter it appears that the complaint of victimisation under section 50 has been referred to the Tribunal. Accordingly the Tribunal has and is exercising jurisdiction in relation to that complaint.

Matters in issue

22 Pursuant to directions of the Tribunal, solicitors for SSCC filed an `Outline of Argument' dated 12 November 1998 . In that Outline of Argument SSCC said that because of the executed deed of release "the Tribunal does not have jurisdiction to hear this matter", and further that "the Tribunal does not have jurisdiction to set the deed of release aside". The Outline of Argument proposed that "these proceedings should be dismissed for want of jurisdiction".

23 On 23 April 1999, however, solicitors for SSCC filed a Notice of Motion which outlined a range of arguments as to why the complaints should be dismissed. It was not suggested there that the Tribunal has no jurisdiction. Rather it was suggested variously, and apparently in the alternative, that, in summary, Ms Drane has received accord and satisfaction from SSCC; that in any event Ms Drane has released SSCC from any liability; that Ms Drane has given an undertaking not to proceed against SSCC; and that in the circumstances Ms Drane is estopped from proceeding against SSCC.

24 2 July 1999 was the first day of the hearing. The parties, each represented by counsel, agreed with the Tribunal that SSCC was, in essence, relying on the defence of release release which would bar Ms Drane proceeding at all. The parties therefore agreed that the Tribunal's inquiry would begin with an inquiry into and decision on the merits of this defence which would, if established, be a complete bar to her pursuing a claim under the ADA.

25 If the terms of the deed purported to release SSCC only from liability for damages, then Ms Drane could argue that she is at least entitled to pursue her claim under the ADA, and that the effect of the deed of release would only be relevant in relation to liability for damages if a breach of the ADA is established. But the terms of the deed purport to release SSCC not simply from liability for damages but from any claim Ms Drane might have. Thus while the Tribunal has jurisdiction arising from the President's referral, Ms Drane would be barred from prosecuting her claim at all.

26 If the Tribunal finds that Ms Drane's maintenance of the proceedings is barred by the terms of the deed of release, then there will be no need for the Tribunal to take the inquiry further, and appropriate orders will be made to dispose of the matter. Time and expense is saved in not unneccesarily conducting an inquiry into merits of the complaints. If the Tribunal finds that the proceedings are not barred by the deed of release, then the inquiry will proceed as to the merits of Ms Drane's complaints.

27 This approach was agreed to by the parties on 2 July 1999 (pages 4 and 5 of the transcript). It is consistent with the obligations on the Tribunal under section 73 of the Administrative Decisions Tribunal Act 1997 (NSW) (`the ADTA'), particularly sections 73(3) and 73(5) which oblige the Tribunal to act without regard to technicalities or legal forms, and to act as quickly as practicable.

28 The Tribunal's power to consider and decide "issues raised by the defences of release by deed" is supported in those terms by the majority on Qantas Airways Ltd v Gubbins and Others (1992) 28 NSWLR 26 at 31A-B, who said that: "the tribunal must have jurisdiction to adjudicate on those defences" (at p 31G).

Parties' evidence and submissions

29 Although her complaints are properly before the Tribunal because of the President's referral, is Ms Drane barred from pursuing it because of the terms of the deed of release? On its face the deed of release has that effect.

30 The relevant clause is clause 3 which reads in full:

3 In consideration of the payment described in Clause 1 above the Applicant agrees to accept that sum in full and final settlement of her claim which is the subject of the proceedings and all costs incidental thereto and:

(a) hereby releases the Respondent from all manner of actions, suits, proceedings, costs, damages, expenses, claims and demands whatsoever which the Applicant has, or but for the provisions of this Deed, may have had at any time or times against the Respondent, its servants or agents by reason or on account of the termination or other conclusion of the Applicant's employment by the Respondent or any other matter, cause or thing whatsoever, arising from or connected, whether directly or indirectly, with the proceedings or any aspect of the Applicant's employment including, but not limited to any action pursuant to the Anti-Discrimination Act 1977(NSW) and/or under the Government and Related Employees Appeals Tribunal.

31 The onus is on Ms Drane to show why the deed of release should not bar her from proceeding. The Tribunal heard evidence first from and for Ms Drane, and then for SSCC in reply. Evidence was limited to matters relevant to the Tribunal determining the status of the deed of release, and did not canvass issues relating to Ms Drane's employment generally or her complaint of discrimination and victimisation.

32 Evidence relied on by Ms Drane was her own, and that of her treating psychiatrist, Dr Clark. It had been her intention to call a Ms Heather Smith to give evidence, but Ms Smith died before she was able to do so. A substantial part of a statement she had made was admitted into evidence.

33 Evidence relied on by SSCC was that of Council officers Mr Peter Macklin, Mr Geoffrey Lewis and Mr Colin Warwick, and that of SSCC's counsel at the Industrial Relations Commission hearing, Mr Goot. It had been intended to call SSCC's solicitor at the Industrial Relations Commission hearing, Mr Stewart, to give evidence but Mr Stewart was absent overseas. A substantial part of a statement he had made was admitted into evidence.

34 During the hearing it became clear to the Tribunal that the evidence of Commissioner Neal, who presided at the Industrial Relations Commission hearing, might be relevant. The Crown Solicitor appeared and advised the Tribunal that Commissioner Neal did not wish to give evidence. For reasons given orally on 13 December 1999, the Tribunal decided that Commissioner Neal could not be compelled to attend. Consequently the Tribunal has reached its decision without evidence from Commissioner Neal, although it did hear evidence about the parties' dealings with him.

35 At the close of the evidence counsel made submissions in writing for Ms Drane and spoke to them briefly. Counsel for SSCC made extensive oral submissions.

THE LAW TO BE APPLIED

Duress and undue influence

36 Ms Drane relies on duress as a ground for setting aside the deed of release. In submissions her counsel said that " a considerable amount of pressure was brought to bear upon Ms Drane" such that " the deed of release could not safely be relied on"; his submissions then refer to "this duress". The submissions further refer to "undue influence exerted upon Ms Drane by one or more other persons in the proceedings, and finally suggest that in any event Ms Drane's "mental state . . . was such that the deed of release could not safely be relied upon".

37 If the evidence establishes that, because of duress, Ms Drane did not sign the deed of release of her own free will, then the deed of release is voidable and may be rescinded by Ms Drane. The deed of release would then be no bar to Ms Drane maintaining these proceedings. The onus is on Ms Drane to establish duress.

38 Duress has a much more defined and narrow meaning in law than it does in ordinary use. To establish duress the evidence must show that Ms Drane was subjected to actual violence, or threats of violence, calculated to produce fear of harm or of loss of liberty, or was subjected to economic pressure, in either event such that she did not act according to her own free will.

39 If the evidence establishes that Ms Drane did not sign the deed of release of her own free will because she was subject to the influence of an illegitimate act, then the deed of release is voidable and may be rescinded by Ms Drane. The deed of release would then be no bar to Ms Drane maintaining these proceedings.

40 If there is what is called a `special relationship' between Ms Drane and those whom she says exerted undue influence, then there is a presumption of influence and the onus is on those whom Ms Drane says exerted the influence to show that they did not exert undue influence. If there is no such `special relationship' between Ms Drane and those she says exerted undue influence, then the onus is on Ms Drane to show that she was actually subject to undue influence in signing the deed of release.

41 To establish that there was a special relationship the evidence must show either that Ms Drane was in the type of relationship with SSCC which is generally recognised as, of its nature, making her vulnerable to SSCC's dominion or authority or that of its agents, or that Ms Drane was in a relationship with SSCC which, in the circumstances, made her vulnerable to SSCC's dominion or authority or that of its agents.

42 If there was no recognised special relationship, and no special relationship is established in the circumstances, then to establish undue influence the evidence must show that Ms Drane was actually influenced by unfair and improper conduct of SSCC or its agents such that her signing of the deed of release was not her free and voluntary act.

Capacity

43 If the evidence establishes that Ms Drane's mental state was such that she lacked capacity to understand the nature of the deed of release when she signed it, then the deed of release is voidable and may be rescinded by Ms Drane. It would then be no bar to Ms Drane maintaining these proceedings.

44 To establish lack of capacity to understand the nature of the deed of release, the evidence must show that Ms Drane was, at the time she signed the deed of release, incapable of understanding its nature.. For Ms Drane to avoid the deed of release the evidence must also establish that SSCC knew or ought to have known at the time of the incapacitating nature of her mental state.

Terms of the deed of release

45 If the evidence establishes that Ms Drane's understanding of the meaning of the deed of release was other than its apparent meaning then the deed of release may be read down and the Tribunal may give effect to that other meaning.

46 Counsel for SSCC argued that the Tribunal cannot look behind the clear words of an agreement and consider the intention of the parties, or at least not unless there is an ambiguity. This may be true in relation to general contract law, but as at least the Court in Gubbins makes clear, the situation is different in relation to a deed of release.

47 The Tribunal may read down the terms of the deed of release if the evidence shows that "the generality of the language of the deed of release was not, in the circumstances, intended to cover a particular matter" (per Kirby J in Gubbins at p 44 C-D), in this case the claim for discrimination on the ground of sex. The majority in Gubbins stated the rule from Grant v John Grant & Sons Pty Ltd [1954] HCA 23; (1954) 91 CLR 112 as being that "the general words of a deed of release will, in an appropriate case, be read down to conform to the contemplation of the parties at the time the deed of release was executed" (at p29 B-C).

FINDINGS OF FACT

48 Whether a deed of release should be set aside or read down depends on the circumstances. That can only be decided on the particular facts of the case. The single issue to be determined is whether Ms Drane is barred from maintaining these proceedings by the terms of the deed of release she signed. The onus is on Ms Drane to show that the deed of release does not bar these proceedings.

49 Ms Drane says that she should not be barred by the deed of release. She says either the deed of release should be set aside because she did not sign the deed of release of her own free will due to duress or undue influence, or the terms of the deed of release should be read down so as not to preclude these proceedings.

50 Based on all the evidence before it, the Tribunal makes the following factual findings as to the circumstances relevant to Ms Drane signing the deed of release.

51 Because the Tribunal has had to identify, analyse and , where possible, resolve apparently conflicting evidence, on occasion from the same witness, the following account takes the uncommon approach of referencing evidence to the transcript. Dates relating to the giving of evidence are all in 1999. Dates relating to proceedings in the Industrial Relations Commission and associated events are all in 1997. The deed of release in question was given by way of a deed. The evidence usually refers to the deed as shorthand for `deed of release'.

12 SEPTEMBER

52 The chronology for 12 September is largely agreed. It emerges from Ms Drane's evidence in chief (2 July at pages 8 to 10 and 14 to 15), her answers to questions in cross examination (7 August at page 19), the statement of Ms Smith, (Exhibit 8) and the evidence of Mr Lewis (13 December at page 25).

53 While Mr Lewis's evidence is helpful in confirming the occurrence of various dealings, it is confused as to timing, both in his statements and his oral evidence. Counsel for SSCC conceded this even before Mr Lewis had given evidence (27 August at page 47), and Mr Lewis gave evidence that his recollection of that period is not good due to illness (13 December at page 34).

Discussions with Mr Lewis

54 It is clear that on Friday 12 September Ms Drane made a written offer to SSCC which was delivered on her behalf by Ms Smith to Mr Lewis. Mr Lewis rejected it immediately.

55 A further written offer (Exhibit B) was delivered on Ms Drane's behalf by Ms Smith to Mr Lewis. It sought 6 months pay, changes to her employment separation certificate and personnel records, and a reference, in return for Ms Drane withdrawing her application to the Industrial Relations Commission.

56 Mr Lewis spoke to Ms Smith and recorded his reply in a note (Exhibit 6) saying that documents would be served on Ms Drane that afternoon, the Council would consider its position over the weekend, settlement was conditional on a deed of release, it would be sorted out in court (sic) on Monday, and Ms Drane will need witnesses on Monday if the Council proceeds.

Letter to the Commissioner

57 On receiving Mr Lewis's reply Ms Smith called the Industrial Relations Commissioner Neal on Ms Drane's behalf.

58 Ms Drane's evidence on 2 July 1999 (at page 15) is that Ms Smith then advised Commissioner Neal that "we thought we had an agreement . . . a verbal agreement . . . subject to signing a deed of release", and that Ms Smith told Ms Drane that the Commissioner wanted to receive by fax "a letter to that effect".

59 After giving this evidence Ms Drane, on 11 August 1999, made a declaration (Exhibit 9) in which she said, at paragraph 20, that Ms Smith had said to her that the Commissioner wanted to receive a fax "stating that you want to withdraw based on discussions you've had with Council".

60 Ms Smith in her statement says at paragraphs 12 to 14 that Mr Lewis had asked her to fax to the Commissioner Ms Drane's written offer (Exhibit B), that she told Ms Drane that "we've got to go and fax it", that she then rang and spoke to the Commissioner's assistant, and that she then faxed "it", in.

61 Whichever account is the case, and the Tribunal does not know, it appears from the transcript of the proceedings before Commissioner Neal on 15 September that what was faxed to the Commissioner was neither advice as to discussions with SSCC, nor Exhibit B, but a different letter altogether in which Ms Drane said that she wished to withdraw her application because she was unable to fund her case.

62 Ms Drane said in her evidence (2 July at page 15) that it was she who prepared the letter to the Commissioner, and said only that it was `unfortunate' that the letter did not give the actual reasons. Later in her evidence (at page 18) she repeated that it was she who had prepared the letter, and offered, as an explanation as to why she had not given the real reason for her discontinuance, that the offer from SSCC was only verbal at that stage.

63 In the period between Ms Drane's evidence on this point on 2 July and cross-examination on 27 August, Ms Drane made her declaration on 11 August (Exhibit 9). In the declaration she offered a different explanation, which she repeated in cross-examination and re-examination on 27 August 17 (at pages 19, 21 and 86). That explanation was that she had already had the letter prepared but undated in the event that the need for it arose. As she had it at hand on 12 September, she sent it as it was.

64 But in her evidence on 2 July when giving a chronology of events on 12 September, Ms Drane did not say that she had already prepared the letter. The explanation to that effect arose later, in an interval between giving evidence and being cross-examined.

65 Ms Drane's consistent evidence is that Ms Smith told her the Commissioner wanted a faxed letter explaining that the case was withdrawn due to its apparent settlement. Ms Smith's untested evidence is that SSCC asked her to fax to the Commissioner the letter of offer.. In either event, it is inexplicable why Ms Drane actually faxed the letter that she did. The Tribunal does not accept Ms Drane's proffered explanation as plausible in the circumstances.

66 It is not necessary to decide why Ms Drane sent to the Commissioner the letter she did. The inconsistency in Ms Drane's evidence, on this point, and the consequent difficulty for the Tribunal to determine what her belief and state of mind actually was, is indicative of the difficulty that the Tribunal has generally with deciding, in the face of inconsistencies in the evidence, many of the issues which Ms Drane must establish.

Belief as to existence of a settlement

67 To establish her state of confusion in the Industrial Relations Commission on 15 September, which is discussed below, Ms Drane relies in part on her uncertainty as to what would actually happen on that day in light of the apparent agreement to settle reached on 12 September.

68 Ms Drane says that she believed that on 12 September the Industrial Relations Commission matter was finalised (on 2 July at page 15; 11 August declaration [Exhibit 9] at paragraph 20), and that as the offer had been accepted and the case withdrawn she didn't know why she had to go to court (sic) (27 August at page 90). She said she was relieved that the matter was finalised (2 July at page 15).

69 But against this Ms Drane had in front of her on 12 September the clear written words of Mr Lewis in reply to her offer, to the effect that the offer would be considered over the weekend and that she should be prepared to run a case. She said in evidence that she knew she had to be ready to run a case on 15 September if SSCC didn't confirm the settlement over the weekend (2 July at pages 11-12), and under cross-examination on 27 August she agreed that she knew on 12 September that the case might proceed (at page 25). She said that she heard Ms Smith say to the Commissioner only that "the offer of six months is still on the table" (11 August declaration [Exhibit 9] at paragraph 20), and that "we thought we had an agreement". She said that the reason she didn't send the letter she believed the Commissioner wanted was that what she had received from SSCC "wasn't a final offer".

70 Again the Tribunal has difficulty finding consistency in Ms Drane's account of her belief and state of mind at the relevant time. On the basis that it is not as probable in the circumstances, the Tribunal does not accept her later inconsistent evidence that she was uncertain on 12 September as to why she had to go to the Industrial Relations Commission.

71 Ms Drane knew that the matter might settle, perhaps probably would settle, but she knew that that was not certain and that she should be at the Industrial Relations Commission on 15 September ready to run the case in the vent that her offer was not accepted by SSCC.

STATE OF MIND

72 Ms Drane's evidence (2 July at page 17) is that at the Industrial Relations Commission on 15 September she was "thinking logically". She "knew what she wanted to achieve". She acknowledged in cross-examination (27 August at page 34) that she negotiated amendments to the deed of release before she signed it, and achieved some compromise from SSCC.

73 Ms Drane says she was not crying at the Industrial Relations Commission; counsel for SSCC at the Industrial Relations Commission Mr Goot agrees she was not, and says she did not appear upset (13 December at pages 52 and 60, nor did she appear confused (at page 130). Mr Macklin, a SSCC officer at the Industrial Relations Commission, states that Ms Drane was not crying; she did not appear tense, she appeared to be "in control", and he didn't see that Ms Drane "was any different to any other people" at the Industrial Relations Commission.

74 Ms Smith's untested evidence that Ms Drane was crying is the only suggestion that she was or appeared to be upset at the Industrial Relations Commission on 15 September, and is against the weight of evidence, including Ms Drane's own..

75 Ms Drane's apparently calm demeanour, her own evidence that she was thinking logically, and the support for this that derives from her having negotiated terms of the deed of release, must all be considered in light of three apparently qualifying, or countervailing, factors: the evidence of her treating psychiatrist Dr Clark, evidence as to Ms Drane's diabetes, and her own contradictory evidence.

Dr Clark's evidence on state of mind

76 Dr Clark describes Ms Drane as a "depressed obsessive". Dr Clark had seen Ms Drane on one occasion before the Industrial Relations Commission proceedings, 6 August 1997, and on the next occasion on 15 October 1997. He did not see or treat Ms Drane contemporaneously with the Industrial Relations Commission proceedings on 15 September. Dr Clark's evidence concerned the general characteristics and tendencies of people with Ms Drane's condition. He was not able to give evidence of Ms Drane's actual behaviour or state of mind on or close to 15 September.

77 Dr Clark's evidence is that a person with Ms Drane's psychiatric condition could be in a panic or a tizz, and that their panicked state would be observable. Such a person could understand court proceedings, and would be able to negotiate depending on the circumstances. But such a person could do silly things, exposing themselves to disadvantage. They would stutter and hesitate. Dr Clark agreed that a person without such a condition could react similarly to litigation.

78 As is clear from the evidence recounted above, Ms Drane was not on 15 September showing any observable signs of, in terms of Dr Clark's evidence, being panicked or in a tizz.

79 Dr Clark agreed that had Ms Drane been taking her prescribed medication for depression on 15 September, that "might have saved her'. In fact Ms Drane was taking that medication on 15 September. Such was her own evidence, and the concession that Dr Clark made cross-examination when taken through an interpretation of his notes.

80 At its highest, Dr Clark's evidence indicates that Ms Drane would have been flustered by the Tribunal process and the circumstances in which the deed of release was signed. It seems that she would not have been happy with the process which was not as measured and detailed as she would have preferred. At the same time, Dr Clark's evidence confirms Ms Drane's intelligence, and specifically that she would have known exactly what was taking place in what she was doing. There is nothing in Dr Clark's evidence that indicates that her medical condition itself could vitiate her consent.

81 Dr Clark's evidence does not give the Tribunal reason, on balance, to find against the substantial weight of evidence, including her own, that on 15 September Ms Drane had a calm demeanour, and was thinking logically.

Diabetes and state of mind

82 No evidence was called from Ms Drane's treating medical practitioners or specialists relating to her diabetes, although two reports of Dr John Casey were admitted into evidence (Exhibit C). One is dated February 1997 and another 29 August 1997 relating to a consultation on 25 August.

83 Nothing in the reports, more relevantly the latter report, indicates how if at all Ms Drane was affected by diabetes on 15 September. In her declaration of 11 August (Exhibit 9), after she had given her evidence in chief, Ms Drane for the first time makes reference to being adversely by diabetes, but not on 15 September. although she was not cross-examined on it.

84 In light of the time at which Ms Drane volunteered the evidence, its lack of specificity as to effect at the relevant time, and the absence of any medical support for it, the Tribunal is not satisfied that Ms Drane was adversely affected at the Industrial Relations Commission on 15 September by her diabetes.

Ms Drane's evidence on state of mind

85 Ms Drane own evidence as to her state of mind is inconsistent. Contrary to her evidence that at the Industrial Relations Commission on 15 September she was thinking logically" and "knew what she wanted to achieve", Ms Drane gave evidence on the same day (2 July at pages 20-21) that she had felt intimidated and, at page 41, that "I thought I was fine but I was feeling stressed". In cross-examination on the same day she said that she had not been in a normal state of mind, and in a state of confusion (page 48). She said this is evidenced by the fact that she signed the deed of release.

86 The Tribunal returns below to the question of what import should be attached to her signing the deed of release; at this stage the point being made is that Ms Drane gave evidence of her not being in a normal state of mind. In cross-examination on 27 August she said again that she was not fit to sign the deed of release (at page 66).

87 On 15 September she knew what she wanted, and what she wanted was money (2 July at page 15). She was aware that she was unlikely to get her job back in any contested proceedings in the Industrial Relations Commission (in cross-examination 2 July at page 47), and he was "relieved" when she reached thought the matter was settled for a sum of money on 12 September (2 July at page 15). This straightforward evidence contrasts with Ms Drane's later contradictory statements.

88 Shortly after her evidence in chief, in cross-examination on 2 July Ms Drane said she wanted a decision from the umpire, her job back, and not money (at page 42). This is in fact consistent with the position that SSCC's solicitor in the Industrial Relations Commission, Mr Stewart attributes to her from an earlier occasion in the Industrial Relations Commission (Ex H paragraph 6).

89 Ms Drane told the Tribunal she was willing to walk away with nothing rather than settle on the terms proposed (2 July page 93). She had agreed, however, that she was willing to settle previously at the Industrial Relations Commission on 3 September, and remained to settle from 3 to 12 September (2 July pages 60-61).

90 Ms Drane's complaint about the proceedings on 15 September was immediate - Miss Smith stated that Ms Drane said, after the proceedings and on the same day, that she didn't agree with the deed of release because it was not fair. On the same day she wrote a letter to SSCC's solicitors complaining of duress (Exhibit G). In his affidavit (Exhibit H) Mr Stewart tells of a phone call from a solicitor acting for Ms Drane advising that Ms Drane complained of duress in signing the deed of release.

91 No particulars of duress were specified, but the point of identifying the complaints of duress at this stage is to explore Ms Drane's state of mind at the time, and it could be inferred for Ms Drane, though not necessarily, that a complaint of duress is at the same time a complaint that she was of a compromised or vulnerable state of mind.

92 Other than her own statements about her state of mind, which are neither detailed nor consistent, and any inference from her complaints of duress, there is no evidence that on 15 September Ms Drane was distressed, that she was confused, or that her mind was not "normal". Her statements to that effect are contrary to her own evidence, contrary to that of all others who gave evidence on point, unsupported by medical evidence, unsupported by her conduct in negotiating terms of the deed of release.

93 In light of the contradictory evidence, it is not possible for the Tribunal to make a finding as to what Ms Drane wanted from the Industrial Relations Commission proceedings. The Tribunal cannot say that Ms Drane was not aware of the nature of the proceedings, was confused as to the state of settlement discussions and the possibility of having to run a case, that she had no intention of settling her case at the Industrial Relations Commission, nor that she did not want, or had not been anticipating, a result which gave her an amount of money.

94 All of these matters are relied on by Ms Drane to establish that she was in a confused and not normal state of mind on 15 September. The Tribunal is not satisfied that this was the case.

ATTITUDE TO SIGNING A DEED OF RELEASE

95 There is substantial evidence which shows Ms Drane's willingness to sign a deed of release. Ms Drane agreed in cross-examination that she had known since at least August 1997 of the need for a deed of release in the case of a settlement.

96 Ms Drane was "relieved" to have, it seemed to her, settled the matter on 12 September, and the clear written terms of SSCC considering settlement included the signing of a deed of release.. At the Industrial Relations Commission on 15 September Ms Drane asserted what she understood to be an agreement reached on 12 September, and she knew that signing a deed of release was necessary if she was to receive the settlement money (2 July at pages 11 and 15).

97 On this evidence there can be little doubt that Ms Drane had, prior to 15 September, accepted the idea of signing a deed of release.

98 But Ms Drane also gave evidence that in August 1997 she had not wanted to sign a deed of release (27 August at page 39), that although she was willing to settle on 3 September she would not have signed a deed of release, and that when she was at the Industrial Relations Commission on 15 September she didn't want to sign a deed of release (27 August at page 94).

99 As to her attitude in August and on 3 September to signing a deed of release there is not other direct evidence; she relies on it to show that her opposition to signing a deed of release was long standing. That has to be weighed with all the evidence.

100 As to her attitude on 15 September to signing a deed of release, Ms Drane was asserting the existence of an agreement a clear term of which was, in writing to her, SSCC's requirement for a deed of release.

101 Again the conflicting evidence from Ms Drane, and on this point the absence of any corroborative evidence of circumstances from inferences could reasonable be drawn, leaves the Tribunal unable to find, as she asserts, that Ms Drane had a long standing unwillingness to sign a deed of release.

UNDERSTANDING OF THE MEANING OF THE DEED OF RELEASE

102 Ms Drane made no claim before the proceedings before the Tribunal began that she understood the meaning of the deed of release to be other than its plain words. She said nothing in her evidence in chief as to her understanding of the meaning or scope of the deed of release.

103 It was in cross-examination that Ms Drane first said that she didn't know the implications of the deed of release (2 July at page 50; 27 August at pages 40 and 82-83). She said she first became aware of the scope of the deed of release sometime after 15 September (27 August at page 103). In saying this Ms Drane could not have been saying that she did not understand the implications or scope of the deed of release at all; she meant that she had understood that its effect was limited to proceedings in the Industrial Relations Commission and that it did not affect her ability to pursue anti-discrimination proceedings (2 July at page 43; 27 August at pages 73 and 80).

Election in the Industrial Relations Commission

104 Ms Drane knew that she was not able to maintain her complaints to the Anti-Discrimination Board. She knew that as long ago as 2 June 1997 that she had given away that right.

105 Ms Drane had signed on 2 June and filed a section 90 undertaking with the Industrial Relations Commission, an undertaking not to "proceed for redress under, or seek any inquiry under, the NSW Anti-Discrimination Act . . ." (Annexure E to the declaration of Ms Drane [Exhibit 9]).

106 Consistently with this undertaking Ms Drane, by letter to the Anti-Discrimination Board dated 2 June 1997, formally withdrew the complaint she had made of sex discrimination, writing "I hereby wish to withdraw my discrimination claim against South Sydney City Council due to current action in the Industrial Relations Commission (file of the Anti-Discrimination Board, Exhibit 7).

107 Ms Drane's letter to the Anti-Discrimination Board was also consistent with advice she had received from her barrister, dated 2 June 1997, as to her options in relation to her proceedings in the Industrial Relations Commission: "Option 1: File the section 90 undertaking and withdraw the discrimination complaint from the Board".

108 In the barrister's advice, Ms Drane was told about this option that "the downside . . .is that (she) gives up her rights under the Anti-Discrimination Act . . . Ms Drane would lose her right to compensation (other than in the place of re-instatement)". That is what Ms Drane knew before 15 September.

109 Despite this history, Ms Drane says she had always thought that she could maintain her claim of discrimination (2 July at page 47), and that it was her intention, if she walked away from the Industrial Relations Commission with nothing, to go to the Anti-Discrimination Board (27 August at page 93). She said that she was advised by the Anti-Discrimination Board that her complaint to the Board would have to wait until after the Industrial Relations Commission proceedings were finished (2 July at page 54). The file of the Anti-Discrimination Board (Exhibit 7) does not support this.

Position with the Anti-Discrimination Board

110 Ms Drane wrote to the Anti-Discrimination Board on 2 June 19997 saying ":I hereby wish to withdraw my discrimination claim against South Sydney Council due to current action in the Industrial Relations Commission". A note on the Anti-Discrimination Board file, where `SCO' is Senior Conciliation Officer and `C' is Complainant, says "SCO suggests closing file on basis that C proceeding instead at DIR (IRC) (emphasis in the original)" and notes that "C still w/in 6 month period if she wishes to reopen".

111 The Anti-Discrimination Board's letter of 16 June to Ms Drane says simply and in full "From your letter of 2 June 1997 I understand that you have decided to withdraw your complaint against South Sydney Council since you are proceeding instead with an action in the Industrial Relations Commission. Your file is now closed and the Board will take no further action on it. Thank you for bringing this matter to the Board's attention".

112 Ms Drane wrote on 1 August saying "I have had further legal advice that I can have a case lodged with the Anti-Discrimination Board and action in the Industrial Relations Commission. I therefore wish to re-activate my claim but do not wish any further action until after my termination case against South Sydney Council goes before the Industrial Relations Commission from 15 September 1997."

113 There is no indication that the Anti-Discrimination Board advised Ms Drane that her complaint would have to, or even could, wait until after the Industrial Relations Commission proceedings. To the contrary, the Anti-Discrimination Board accepted Ms Drane's advice as to her chosen course of action, and told her that the file was closed.

114 If the legal advice Ms Drane referred to in her letter of 1 August was her barrister's advice of 2 June then that advice clearly spelt out an option under which Ms Drane could make a choice had between the Anti-Discrimination Board and the Industrial Relations Commission. Ms Drane made that choice, and elected to pursue the Industrial Relations Commission proceedings.

115 In fact Ms Drane did not contact the Anti-Discrimination Board until November, 2 months after signing the deed of release. She had in the meantime complained hat she signed the deed of release under duress and had said she wanted the deed of release to be set aside. Her complaints about the deed of release, and her calls for it to be set aside, are not consistent with a belief that she was able to maintain her proceedings in the Anti-Discrimination Board..

116 Ms Drane's assertion that on 15 September she understood, despite having signed the section 90 undertaking and maintained the Industrial Relations Commission proceedings, that she was still entitled to maintain her complaint in the Anti-Discrimination Board, is against the weight of evidence.

The deed of release at the Industrial Relations Commission

117 Ms Drane discussed the deed of release in general terms with her father on 15 September. She read it out in full to a solicitor over the telephone, who said only that it was "legally sound" and without anomalies. Mr Goot says only that he discussed the deed of release with her on 15 September before she signed it, and recalls mentioning the fact that the required deed of release related to proceedings under the Anti-Discrimination Act. Mr Macklin saw Mr Goot discussing the deed of release with Ms Drane but does not recall what was said.

118 The evidence shows that on 15 September Ms Drane received some indication concerning the deed of release's effect in preventing her from pursuing her claim under the Anti-Discrimination Act only from SSCC's barrister Mr Goot, but we do not know in what terms or detail.

119 However the evidence also shows that prior to 15 September Ms Drane understood that having elected to pursue the Industrial Relations Commission proceedings she had thereby forfeited her right to pursue her claim under the Anti-Discrimination Act. That was the effect of the section 90 undertaking she signed and filed in the Industrial Relations Commission through her counsel at the time. That is what she was advised by her counsel as a possible course of action, and she took that the course of action when she withdrew her complaint from the Anti-Discrimination Board.

120 Ms Drane gave evidence that when she did not want to sign the deed of release she knew that she had other options, such as going to the Anti-Discrimination Board (27 August at pages 94-95). But she had said that she believed that by signing the deed of release only covered the Industrial Relations Commission proceedings (27 August at page 73). The two are contradictory; Ms Drane could not have held both beliefs at the same time.

121 The contradiction was repeated. She said that she had an objection "as a matter of principle" to signing a deed of release (27 August at page 97), she thought a deed "was not fair" (27 August at page 97), and she thought a deed of release was not a fair way to go (27 August at page 97). But she said immediately afterwards (page 98) that she understood the deed of release she was signing was a release from only the Industrial Relations Commission proceedings, not those in the Anti-Discrimination Board.

122 It is not clear what Ms Drane meant when she said to Ms Smith, on leaving the Industrial Relations Commission after having signed the deed of release "I don't agree with the deed, because it's not fair". The statement is consistent with an understanding on her part that the release prevented her pursuing her discrimination claim.

123 Other evidence only adds to the confusion as to what on 15 September Ms Drane believed the effect of the deed of release to be. There is substantial evidence from which strong inferences can be drawn that Ms Drane did know that the terms of the deed of release prevented her pursuing her discrimination claim. Against this is her own evidence that she did not know this, although her claim to this effect was not made until she was being cross-examined in these proceedings; she did not make it to Ms Smith unless that was what she meant by "it's not fair", she did not make it to Dr Clark, to solicitors, to the Anti-Discrimination Board.

124 When asked in cross-examination whether, on reading the terms of the deed of release while in the witness box, she still believed that the deed of release did not prevent her pursuing her discrimination claim, she said, yes, that continued to be her belief. It would of course be possible for the Tribunal to find, if evidence supports it, that Ms Drane had a mistaken belief on 15 September 1997 as to the meaning of the deed of release even though she now understands its proper meaning.

125 Ms Drane is an educated, intelligent and capable person, confident in giving evidence, on occasions quick witted and consistently calm and considered in her manner. She was aware of SSCC's argument that the deed of release bars her claim, and aware that she carries the onus of showing that the deed of release should not be bar. She may well have had the burden of having to show this on her mind when she insisted that she continues to reads the deed of release as not barring her claim. The Tribunal does not believe that Ms Drane, in the witness box in 1999, honestly believed that its wording did not and does not prevent her pursuing her discrimination claim.

126 Having regard to all the evidence, and particularly to its irreconcilable inconsistencies, the Tribunal is not satisfied that Ms Drane has discharged the onus that is on her to show that she understood the deed of release, at the time she signed it, to be limited to proceedings in the Industrial Relations Commission and to not extend to cover her claim of discrimination. The Tribunal finds that on 15 September Ms Drane did know that the deed of release that she was asked to sign, and did sign, extended to here complaints then before the Anti-Discrimination Board and now before this Tribunal.

RELATIONSHIP BETWEEN MS DRANE AND SSCC

127 It was submitted for Ms Drane that she was in a special relationship with SSCC because she was recently an employee of SSCC, and with the lawyers for SSCC because she was unrepresented in the proceedings. If this is so then there would be a presumption as to undue influence and no evidence would be necessary from Ms Drane to establish actual exercise of undue influence.

128 In the absence of any special relationship, the onus is on Ms Drane to establish that SSCC actually exercised influenced her in relation to signing the deed of release such that she was not freely exercising her will. The undue influence may come from a third party to the transaction, in this case the lawyers representing SSCC, or the presiding Commissioner at the Industrial Relations Commission. The evidence as to the conduct of other parties is discussed below.

COMPLAINT OF DURESS

129 Ms Drane did complain after having signed the deed of release that she had been subject to duress.

130 The untested evidence of Ms Smith is that later on the same day that she signed the deed of release Ms Drane said "I don't agree with the deed, because it's not fair", but without saying why that was so.

131 On the day she signed the deed of release she wrote to Mr Stewart, solicitor for SSCC saying "I wish to withdraw my deed of release which I signed under duress this morning".

132 The untested evidence of SSCC's witness Mr Stewart is that a solicitor acting for Ms Drane called his office on 23 September and said that Ms Drane "claims duress and wants the settlement/deed of release set aside" (Exhibit H paragraph 41 and annexure I).

133 She complained of duress to Dr Clark on 15 October and 5 November.

134 The terms and timing of Ms Drane's complaint of duress, and her use of that term, are not relevant to whether there was in fact duress, or undue influence.. The doctrines of duress and undue influence require a certain kind of conduct in certain circumstances before either can be established as a basis for setting aside a deed of release. The existence of that conduct or those circumstances is discussed in the following paragraphs.

CONDUCT OF OTHER PARTIES

135 Ms Drane gave evidence in chief (2 July at page 21) that counsel for SSCC, Mr Goot, was not aggressive, but was demanding in the way he spoke to her. She said later that his manner when speaking to her was "very aggressive"" by which she meant "just like short". She elaborated saying he was physically standing over her (27 August at page 69).

136 Ms Drane says that it was the "attitude and physical presence" of Mr Stewart and Mr Goot which, in addition to a threat of costs, caused her to sign the deed of release (27 August at page 69).

137 Dr Clark's notes of a consultation on 15 October record "she thinks they stood over her".

138 Ms Drane said (27 August at page 92) that she observed Mr Goot to be angry and aggressive with the Commissioner apparently because of his frustration at having to repeat himself. Mr Goot in his evidence said he was not angry or aggressive towards Ms Drane (13 December at pages 55, 67 and 69).

139 Ms Drane says that she was aware from a Mr Warwick that SSCC had engaged a "hot shot" barrister, and implies that she was intimidated by that knowledge of Mr Goot. Mr Warwick denies having told Ms Drane this. It may be that Ms Drane, if she had heard that said of Mr Goot, came by that knowledge in another way. In any event nothing turns on it. The apparent disparity between Ms Drane's evidence and that of Mr Warwick was not explored sufficiently to lead to any finding as to credit, or to any finding as to Ms Drane's belief as to Mr Goot's skill or reputation..

140 Ms Drane says in her evidence (2 July at page 23) that the Commissioner told her "you've got to sign it now". She says that the Commissioner denied her request to take the deed of release away to consider and get advice on it, allowing her time only to make a telephone call (2 July at page 37). For reasons referred above, the Tribunal did not hear evidence from the Commissioner.

141 She said further that she "had no choice" but to sign the deed of release because "the Commissioner wanted to enter into all these discussions, what was I supposed to do, get and walk out?". She was asked "So it was the fact that the Commissioner sort of kept you there to discuss the matter to try and resolve it?", and replied "Yes, when I thought it had been resolved on Friday and then they dragged me in on Monday. It wasn't finalised Monday. They put me through all this other stuff" (27 August at pages 64-64).

142 Ms Drane agreed that her friend who was at the Industrial Relations Commission, Ms Julie Griffiths, wanted her to sign the deed of release, as did Ms Smith (27 August at page 69).

143 There is insufficient evidence on which the Tribunal could find that Mr Goot's manner towards Ms Drane was aggressive or otherwise inappropriate at the Industrial Relations Commission on 15 September. In any event, at its worst the conduct alleged by Ms Drane against Mr Goot is that he was demanding. As is discussed below, this would not, if established, be sufficient to warrant the setting aside of the deed of release.

144 Similarly the Tribunal cannot find on the available evidence that there was anything in the Commissioner's conduct towards Ms Drane that was inappropriate or that could have satisfied the requirements for a finding of undue influence or duress.

145 Ms Drane's own evidence undermines the relevance of the manner and conduct of the parties and the effect, if any, it had on her. Ms Drane says clearly "I signed it (the deed of release) basically on the grounds of costs", and that "They all encouraged me to sign it based on the cost aspect" (27 August at page 69).

146 It is Ms Drane's evidence that the influence on her to sign the deed of release was not the conduct of other parties generally, but in relation to the question of costs.

THREAT OF A COSTS ORDER

147 Ms Drane's evidence is that she was given a straightforward choice - sign the deed of release or face a costs application (2 July at page 22). In cross-examination on the same day Ms Drane said that she was prepared to settle only because of the risk of costs, and the unlikelihood of getting her job back (2 July at pages 46-47). In further cross-examination on 27 August Ms Drane said repeatedly that she signed the deed of release because of the risk of costs (2 July at pages 69 and 70).

148 Under cross examination on 2 July 1999 she said that "she had to sign it (the deed of release) that day or there was a possibility of costs". She agreed that costs was put "no higher than a possibility" (2 July at page 49). She elaborated by saying that Mr Goot and Mr Stewart "said it (the deed of release) had to be signed today or there could be an application for costs". Later Ms Drane clarified this, saying that it was either Mr Groot or Mr Stewart but not both who put this proposition to her. She had seen them consult between themselves, and "Mr Goot probably said it". An uncertain recollection as to which of the two actually put the proposition is in the Tribunal's view understandable in the circumstances, and the Tribunal accepts that that is the proposition which was put to Ms Drane.

149 Ms Drane's references in her evidence to discussions about `costs', and to a risk of `costs' are taken by the Tribunal to be references to a costs application being made and to the consequent risk of an actual costs order. As is described below, Ms Drane understood the costs regime in the Industrial Relations Commission, and knew of the need to make an application as a necessary step towards an order being made. She did not at any time believe that she was necessarily, or even probably, facing a costs order, but only that she faced an application for costs with the possible consequence of an order being made.

150 Ms Drane has relied on two factors to support her contention that she really believed that an order for costs was likely, and that she therefore signed the deed of release rather than be ordered to pay costs.

151 Firstly she says that she had the impression that the Commissioner would order costs (27 August at page 101). But Ms Drane acknowledges that the Commissioner in his discussions with her did not say that she would have to pay costs, nor indeed anything specifically in relation to costs (2 July at page 49; 27 August at page 101). Ms Drane does not identify anything in the Commissioner's language or demeanour to explain why she had the impression that he would, if asked, make an order for costs.

152 The Tribunal finds that nothing in the Commissioner's conduct, or demeanour could reasonably have given Ms Drane cause to believe on 15 September that he was likely to make a costs order against her, nor did Ms Drane have a genuinely held if unreasonable belief to that effect.

153 Secondly she believed that her case might have been seen as unreasonable and therefore might have been one of those circumstances in which costs would be awarded. But this statement is contrary to Ms Drane's knowledge of the costs jurisdiction and powers of the Industrial Relations Commission, and is inconsistent with her belief that an application for costs would have been unreasonable.

154 Ms Drane had a good understanding of the costs provisions of the Industrial Relations Commission. She had known for at least 6 months of the issue of costs associated with proceedings in the Industrial Relations Commission (2 July at page 49); she had researched and knew at the time the costs powers of the Industrial Relations Commission and the circumstances in which costs would be awarded (27 August at page 100); she knew that an order for costs was only a possibility (2 July at page 49); she had had counsel's advice that costs are rarely awarded in the Industrial Relations Commission (27 August at page 92); she believed that a costs application would have been unreasonable (2 July at page 50).

155 The Tribunal finds on the evidence that Ms Drane knew on 15 September that a costs order was unlikely, and that it is unlikely that the risk of costs if she proceeded with her case in the Industrial Relations Commission caused Ms Drane to sign the deed of release.

MOTIVE

156 SSCC explored Ms Drane's attitude to money as a motive for her seeking now to pursue a claim for discrimination after having received the benefit of a financial settlement in the Industrial Relations Commission.

157 Dr Clark's evidence is that money is very important to Ms Drane (2 July at page 99), but Ms Drane denies a special interest in money (27 August at pages 83-84), and quite reasonably cited the considerable expense she can be assumed to be incurring in pursuing these proceedings.

158 But Ms Drane said that she was unhappy with the amount of money she had received in the settlement (27 August at page 73). In her letter to solicitors for SSCC on the day she signed the deed of release and accepted the cheque (Exhibit G) Ms Drane said "I do not wish to accept money from South Sydney Council". She did not return the cheque with that letter, or at all. In cross-examination she says hat she did not deposit the cheque until three months after receiving it as she did not feel that the money was hers (27 August at page 71). She later said she does not know why she did not return the cheque (27 August at page 103). This evidence is inconsistent.

159 There was extensive evidence led and traversed regarding Ms Drane's financial situation, her employment at different times, and her income. Lengthy cross-examination of Ms Drane in relation to her employment status in the period of months either side of 15 September turned, in the Tribunal's view, on the different understanding that Ms Drane and counsel for SSCC had as to Ms Drane's status when she was employed variously as casual, part-time, on contract and on call..

160 Ms Drane was consistent in her account of her employment situation at relevant times, and her evidence was not contradicted by records. The Tribunal understands Ms Drane's evidence as to her employment status, and does not find that any real question arises as to the truth of what she said at the relevant times about her employment status.

161 Ms Drane's failure to produce financial records only for the period in question was attributed by her to her accountant having lost the records. Ms Drane gave an explanation for the absence of financial records for the relevant period, and the Tribunal has been offered no evidence for disbelieving that explanation. There was no evidence before the Tribunal on this point and the Tribunal can make no finding in relation to it..

162 There is insufficient evidence for the Tribunal to draw any conclusion as to Ms Drane's attitude to money generally. Certainly the Tribunal cannot conclude that Ms Drane has been motivated in these proceedings by any special need for or unusual interest in money.

DECISION

163 Applying the law to the facts as found, the decision of the Tribunal is that Ms Drane has failed to establish grounds for setting aside the deed of release or for reading down its terms.

164 The evidence does not establish conduct that would satisfy the requirements of the doctrine of duress. There was no evidence of threats of violence or harm at all, let alone any that vitiated her free will in signing the deed of release.

165 Ms Drane was not subject to duress in signing the deed of release.

166 She asserts a special relationship such that undue influence should be presumed. The relationship of employer and employee is not one that has been recognised as necessarily being a special relationship of trust and confidence giving rise to a presumption of undue influence. The relationship of `immediate past employer' and `immediate past employee' seems one step further removed from any such presumption.

167 Ms Drane was not in a special relationship with SSCC such that undue influence should be presumed in their dealings.

168 In the absence of a presumption as to undue influence, Ms Drane relies on conduct and circumstances to show the actual exercise of undue influence.

169 The evidence does not show Ms Drane to have been under any disability that made her particularly vulnerable to any conduct that did exist. Even if she was under any such disability the evidence does not show that SSCC was not on notice as to that disability, nor that Ms Drane's demeanour or the circumstances were such that SSCC should have been on notice.

170 Regardless of Ms Drane's vulnerability, the evidence does not establish that the conduct of parties who had dealings with Ms Drane on 15 September was illegitimate, nor that it caused Ms Drane to sign the deed of release against her will.

171 A threat to seek a costs order could neither constitute economic duress, nor be conduct amounting to undue influence. A threat to seek an adverse costs order is usually legitimate, and might be classified as `mere commercial pressure'. In Ms Drane's case, the suggestion that costs would be sought, even if that is to be characterised as a `threat', was legitimate. Although in the Industrial Relations Commission there is a presumption against an order for costs, there is a discretion available to the Commission to order costs, so it is always possible for a party to seek a costs order.

172 In any event the evidence does not show that the threat of a costs application, even if illegitimate, was pressure such that Ms Drane's consent to the contract was not voluntary.

173 The evidence does not warrant the reading down of the deed of release. The Tribunal finds no basis for treating the deed of release other than a document that stands as a bar to Ms Drane maintaining a claim under the Anti Discrimination Act relating to her employment with SSCC. The Tribunal is of the view that Ms Drane has since attempted to characterise the deed of release in such a way so as to enable her to pursue her discrimination complaints despite having undertaken not to, having signed a deed of release to that effect, and having taken and used the payment she received in consideration for her release.

174 Ms Drane seems to have said herself what it is that has driven her to these proceedings. In her declaration of 11 August 1999 (Exhibit 9), Ms Drane says at paragraph 33 "Immediately after the hearing I regretted having signed the deed of release. I didn't think it was a fair offer and that (sic) I seemed to have pleased everyone else but it was not what I wanted to do".

175 Ms Drane regrets having made the choices she made. She wishes she could do it again, and go down a different path. For the sake of certainty and fairness, the law will hold people to their agreements unless there are strong reasons, recognised in law, for not doing so. Ms Drane regrets having signed the deed of release, and so has tried to identify sufficient reasons in law to avoid it. She has not succeeded.

176 The Tribunal finds that the deed of release executed by Ms Drane on 15 September 1997 is a complete bar to her conducting proceedings relating to the complaints against South Sydney City Council of discrimination and of victimisation referred to the Tribunal by the President of the Anti-Discrimination Board.

EFFECT OF THE DECISION

177 The Tribunal has been conducting an inquiry into Ms Drane's complaints pursuant to section 96 of the ADA. The Tribunal commenced its inquiry by way of determining the status of the deed of release as a bar to her conducting the proceedings.

178 Ms Drane is a party to the Tribunal's inquiry by virtue of section 99 of the ADA. Ms Drane is barred from pursuing her claims of discrimination and victimisation. The practical effect of the Tribunal's decision is that it is precluded from conducting its inquiry further.

179 Orders the Tribunal can make in this case are not be made `after holding the inquiry' within the meaning of section 113 of the ADA, but are made at a `stage of the inquiry' within the meaning of section 111 of the ADA.

180 On the question of costs the Tribunal notes the requirement in section 114(1) of the ADA that each party shall pay their own costs. An exception to this requirement is in 114(2) where the Tribunal is of the opinion that circumstances justify some other order, and section 111(2) where the Tribunal, when a complaint is dismissed under s 111, "may order the complainant to pay the cost of the inquiry".

181 Section 111(2) does not reverse the rule in section 114(1) such that a complainant will necessarily pay the other's costs when a complaint is dismissed . It merely allows the Tribunal to make an order that departs from the rule in section 114(1).

ORDERS

182 The Tribunal orders:

(i) Pursuant to Section 111 (1) of the Anti-Discrimination Act the complaint of discrimination on the ground of sex is dismissed, for the reason that its prosecution is barred by a release given by the complainant to the respondent on 15 September 1997.

(ii) Pursuant to Section 111 (1) of the Anti-Discrimination Act the complaint of victimisation is dismissed, for the reason that its prosecution is barred by a release given by the complainant to the respondent on 15 September 1997.

(iii) Each party shall pay their own costs.