The Commonwealth, however, pointed to a deed of release Leach had signed after the end of her employment. The deed was part of the settlement for the fair work claim Leach threatened to bring over her dismissal. Sexual harassment allegations from the cloacal underbelly of One Nation … Former senator suing P. Hanson … Former staffer also suing over alleged sexual harassment by ex-senator … Deed of release – Commonwealth not liable … Another scarifying experience of political life … Janek Drevikovsky on the case
The ruling, made by Justice Michael Lee, does not prevent the complainant, Wendy Leach, from proceeding against Mr Burston personally.
Ms Leach’s claims are at the centre of the defamation suit Burston has brought against his former party leader, Pauline Hanson, who in a Facebook post accused the ex-senator of inappropriately touching “more than six” of his female staff.
Hanson made the post in early 2019, after Burston acrimoniously split from One Nation to join Clive Palmer’s United Australia Party.
Ms Leach alleges she was a victim of Burston’s behaviour while working in his electoral office between September 2016 and her dismissal in November 2018.
The nature of Ms Leach’s claims is unknown. However, Burston has elsewhere been accused of kissing a staffer, telling a staffer that she “need[ed] a good fuck” and repeatedly referring to a staffer as “Miss World” or “a good looking sheila”.
For her part, Ms Leach commenced her claim against Burston with a sex discrimination action before the human rights commission. After that action failed, she lodged a harassment claim with the Federal Court late last year.
She joined both Burston and the Commonwealth as defendants, alleging the Commonwealth, which had been her ultimate employer, was vicariously liable for Burston’s conduct.
The Commonwealth, however, pointed to a deed of release Leach had signed after the end of her employment. The deed was part of the settlement for the fair work claim Leach threatened to bring over her dismissal.
On its face, the deed released the Commonwealth from “all claims” relating to her employment.
Citing Grant v John Grant & Sons, Justice Lee said that equity would prevent a defendant from relying on the strict terms of a deed if it would be unconscionable to do so.
For instance, it might be unconscionable to rely on the general wording of deed which the parties had intended only to bar a narrow subset of claims.
The question, in this case, was whether the facts, as proved by Ms Leach, surrounding the deed showed that the Commonwealth was acting unconscionably.
Ms Leach’s evidence was that, during the conciliation of her fair work matter, the Commonwealth’s representatives told her she would still be allowed to bring sexual harassment claims despite signing the deed.
“Whether you would want to call it a deed, a settlement, a whatever – NDA, 100 per cent I was allowed to do it. I would not have signed it if I couldn’t have gone further with this. I just know it.”
But the Commonwealth’s representatives had different memories. Both civil servant Lauren Barons and AGS lawyer Catherine Mann said they didn’t remember telling Leach she could still sue.
Further, Ms Barons said it would have made little sense to negotiate a settlement agreement, but still leave the Commonwealth open to future liability.
Ms Leach, on the other hand, was not “an impressive witness”:
“She was often non-responsive and was defensive and confrontational with the cross-examiner. Moreover, I had the distinct impression that she was, at times, pausing and seeking to fashion her evidence to suit the forensic exigencies as she perceived them.”
His Honour accepted that Ms Leach subjectively believed that, in signing the deed, she was only settling her fair work claim and not barring future actions.
But this mistake was entirely hers:
“[H]er subjective misapprehensions as to the nature of the bargain she struck with the Commonwealth, without more, are neither here nor there.”
Nothing the Commonwealth did contributed to Ms Leach’s misapprehension or departed from ordinary standards of fair dealing. That meant the Commonwealth could rely on the deed in good conscience.
Justice Lee made orders removing the Commonwealth as respondent to Ms Leach’s action.
He also noted that his adverse findings about Ms Leach’s evidence could give rise to an apprehension of bias if he continued to judge the rest of her matter.
He therefore returned the case to the national registrar, for allocation to a different judge for the next round against former senator Burston.