Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Aldous v State of New South Wales [2018] NSWCA 261 Hearing dates: 29 August 2018 Date of orders: 09 November 2018 Decision date: 09 November 2018 Before: Basten JA at [1]; Macfarlan JA at [2]; Payne JA at [3] Decision: (1) Appeal dismissed. (2) The appellant to pay the respondent's costs of the appeal as agreed or assessed. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – disability compensation under Crown Employees (Police Officers Death and Disability) Award 2005 – procedural fairness – whether self-represented litigant denied procedural fairness EQUITY – disability compensation under Crown Employees (Police Officers Death and Disability) Award 2005 – unconscionability - whether conduct of NSW Police in enforcing Deed unconscionable – whether NSW Police owed appellant a fiduciary duty – whether breach of fiduciary duty TORTS – disability compensation under Crown Employees (Police Officers Death and Disability) Award 2005 – whether NSW Police owed appellant a duty of care – whether breach of duty of care CONTRACTS – disability compensation under Crown Employees (Police Officers Death and Disability) Award 2005 – whether Deed contravened Contracts Review Act 1980 (NSW) Legislation Cited: Contracts Review Act 1980 (NSW), s 9 Crown Employees (Police Officers Death and Disability) Award 2005, cll 7, 8, 9, 10 Cases Cited: Bauskias v Liew [2013] NSWCA 297 Blomley v Ryan (1956) 99 CLR 362 Bridgewater v Leahy (1998) 194 CLR 457; [1998] HCA 66 Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; [1983] HCA 14 Gibbons v Wright (1954) 91 CLR 423; [1954] HCA 17 Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392; [2013] HCA 25 Louth v Diprose (1992) 175 CLR 621; [1992] HCA 61 Maund v Crown in right of the State of New South Wales [2013] NSWCA 226 Category: Principal judgment Parties: Adrian Aldous (Appellant ) State of New South Wales (Respondent) R Perla (Amicus curiae) Representation: Counsel: Appellant (self-represented) P Moorhouse (Respondent) R Perla (Amicus curiae) Solicitors: Appellant (self-represented) de Mestre and Company (Respondent) File Number(s): 2017/00384434 Decision under appeal Court or tribunal: District Court Jurisdiction: Civil Date of Decision: 24 November 2017 Before: Balla DCJ File Number(s): 2010/00099473 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Headnote [This headnote is not to be read as part of the judgment] Mr Aldous was a former police officer who sustained a psychiatric injury during the course of his employment as a police officer. Under the Crown Employees (Police Officers Death and Disability) Award 2005, a police officer became entitled to be paid if certain conditions were met: (1) a partial and permanent disability benefit from the New South Wales Police, or, if certain different conditions were met, (2) a total and permanent disablement benefit from Metlife Insurance Limited through First State Super. Clause 10.6 of the Award provided that a police officer could only receive one benefit. If a police officer was paid a partial and permanent disability benefit, and subsequently was paid a total and permanent disablement benefit, the partial and permanent disability benefit was required to be repaid. Clause 10.6 of the Award required that prior to be being paid a partial and permanent disability benefit, a police officer must enter into a Deed of Repayment. In July 2007, Mr Aldous made a claim under the Award for a partial and permanent disability benefit arising from a psychiatric injury, and entered into a Deed of Repayment. The Deed provided that if Mr Aldous became eligible for a total and permanent disablement benefit he would repay the amount he received as a partial and permanent benefit to the New South Wales police within 14 days. The Deed alternatively authorised, but did not require, Metlife to deduct and pay the amount of the partial and permanent benefit directly to the New South Wales Police. In October 2008, a partial and permanent disability benefit was paid to Mr Aldous. Subsequently, in May 2009, a total and permanent disablement benefit was paid to Mr Aldous. After lengthy correspondence, and the part repayment of the partial and permanent disability benefit by Mr Aldous, the New South Wales Police commenced recovery proceedings for the outstanding balance of the amount of the partial and permanent disability payment. The primary judge found that Mr Aldous was obliged to repay the outstanding balance of the partial and permanent disability payment plus interest as he had signed the Deed and was capable of understanding the general nature of the Deed. Mr Aldous' cross-claim which relied on alleged breaches of contract, breaches of fiduciary duty, breaches of a duty of care and a claim that the Deed was unjust within the meaning of the Contracts Review Act 1980 (NSW) was rejected by the primary judge. The issues on appeal were: (i) Whether there was a denial of procedural fairness by the primary judge in failing to permit the appellant to amend his defence and cross-claim; (ii) Whether the primary judge misapplied the relevant legal principles in relation to unconscionability; (iii) Whether the primary judge misunderstood the effects of the appellant's health; (iv) Whether the primary judge erred in finding that the respondent did not owe the appellant a fiduciary duty or a duty of care; and (v) Whether the primary judge erred finding that provisions of the Deed were not unjust within the meaning of the Contracts Review Act 1980 (NSW). Payne JA (Basten and Macfarlan JJA agreeing) held, dismissing the appeal: In relation to issue (i), There was no denial of procedural fairness in the primary judge failing to permit Mr Aldous to amend his pleadings or to advise Mr Aldous about the best way to amend his pleadings: [63]. Bauskias v Liew [2013] NSWCA 297 applied. There was no denial of procedural fairness in the way the primary judge dealt with a notice to produce regarding the form of the Deed: [67]. In relation to issue (ii), There was no relevant unfairness or unconscientious taking advantage of Mr Aldous in the conduct of the New South Wales Police in requiring repayment of a benefit to which Mr Aldous had no entitlement. Mr Aldous was not operating under a special disability or disadvantage leading to an inability to make a rational judgment about his own best interests, nor did the New South Wales Police take advantage of any such disability or disadvantage: [71]-[75]. Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; [1983] HCA 14; Blomley v Ryan (1956) 99 CLR 362; Louth v Diprose (1992) 175 CLR 621; [1992] HCA 61; Bridgewater v Leahy (1998) 194 CLR 457; [1998] HCA 66 applied. In relation to issue (iii), The primary judge was correct to find that Mr Aldous was capable of understanding the general nature of the Deed when he signed it. The medical evidence about Mr Aldous' mental health did not undermine this finding: [77]-[81]. In relation to issue (iv), There was no error in the primary judge's conclusion that no relevant fiduciary duty was owed by the New South Wales Police to a former employee, Mr Aldous: [85]. To the extent that Mr Aldous' true complaint was an alleged breach of duty of care, no duty was owed by the New South Wales Police to ensure that Metlife deducted the amount of the partial and permanent disability benefit before paying the total and permanent disablement benefit as this would be inconsistent with the parties' obligations under the Deed: [87]. The primary judge correctly found that Mr Aldous could not rely on the alleged promise regarding the sale of Mr Aldous' property for repayment purposes: [89]. In relation to issue (v) The primary judge did not err in finding that Mr Aldous' reliance on s 9(2)(a) of the Contracts Review Act 1980 (NSW) was misplaced. Mr Aldous failed to demonstrate any relevant injustice in the provisions of a Deed requiring repayment of a benefit to which Mr Aldous had no entitlement, or in its ultimate operation to require such repayment: [90]. Judgment 1. BASTEN JA: I agree, for the reasons given by Payne JA, that this appeal must be dismissed with costs. 2. MACFARLAN JA: I agree with Payne JA. 3. PAYNE JA: This is an appeal by Mr Aldous from a decision of the primary judge, Balla DCJ, in State of New South Wales v Adrian Aldous (District Court (NSW), 27 November 2017, unrep). The primary judge found for the plaintiff State of New South Wales, but did not make orders until the claim for interest had been quantified. Orders were made by the primary judge on 4 December 2017 as follows: "1. Verdict for the plaintiff against the defendant in the sum of $276,957.88 together with interest of $186,791.78 totalling $463,749.66. 2. Verdict for the cross-defendant against the cross-claimant. 3. Defendant to pay the plaintiff's costs of and incidental to the Statement of Claim on an ordinary basis as agreed or assessed. 4. Cross-claimant is to pay the cross-defendant's costs of and incidental to the cross-claim on an ordinary basis as agreed or assessed. 5. Exhibits retained." Relevant facts 1. Mr Aldous, a former police officer, sustained a psychiatric injury during the course of his employment as a police officer. Mr Aldous ceased active duties as a police officer in late 2005. 2. On 14 May 2007, Dr McClure, a psychiatrist, diagnosed Mr Aldous as suffering from an adjustment disorder with mixed anxiety and depressed mood and a major depressive episode. Between 26 June 2007 and 17 July 2007, Mr Aldous was an inpatient at St John of God Hospital undergoing a treatment program under the care of Dr Selwyn Smith. Mr Aldous' employment with the NSW Police ceased in July 2007. 3. Under the Crown Employees (Police Officers Death and Disability) Award 2005 (the "Award"), a police officer became entitled to be paid a partial and permanent disability benefit from the NSW Police if certain conditions were met and to be paid a total and permanent disablement benefit from Metlife Insurance Limited ("Metlife") through First State Super, if certain different conditions were met. Clause 10.6 of the Award, however, provided that a police officer could only receive one benefit, either a partial and permanent disability benefit or a total and permanent disablement benefit. Clause 10.6 of the Award also required police officers, prior to receipt of any benefit, to enter into a deed of repayment, in terms agreed by the parties. (i) the payments 1. Mr Aldous made a claim under the Award for a partial and permanent disability benefit arising from his psychiatric injury. The primary judge characterised Mr Aldous' injury as Post Traumatic Stress Disorder. On 25 July 2007, Mr Aldous and the Commissioner of Police (for and on behalf of the NSW Police) entered into a deed (the "Deed"). The Deed provided that Mr Aldous was entitled to a partial and permanent disability benefit under clause 9 of the Award. The Deed recited that clause 10.6 of the Award provided that members could only receive one benefit, either a partial and permanent disability benefit or a total and permanent disablement benefit. The Deed recorded the agreement of both parties, in accordance with the terms of the Deed, that Mr Aldous would repay the NSW Police all moneys paid to him for the partial and permanent disability benefit if he became entitled to either a death benefit or a total and permanent disablement benefit under clauses 7 and 8 of the Award, respectively. The Deed provided that if Mr Aldous became eligible for either a clause 7 or 8 benefit, he would either remit the amount he had received as a partial and permanent disability benefit to the NSW Police within 14 days, or Metlife would be irrevocably authorised to deduct and pay directly to the NSW Police the total amount paid as the partial and permanent disability benefit. 2. On 23 October 2008, a partial and permanent disability benefit in the sum of $434,957.88 was paid to Mr Aldous. Mr Aldous actually received $301,985.97. The primary judge found that the difference between the two amounts was tax levied as an "employment termination payment" on the benefit which was paid by the NSW Police to the Australian Taxation Office. No challenge was made to that finding. 3. On 20 May 2009, a total and permanent disablement benefit in the sum of $633,488.00 was paid to Mr Aldous. Mr Aldous actually received $582,557.95. The primary judge found that the difference between the amounts of $633,488.00 and $582,557.95 was tax levied as an "employment termination payment" on the benefit which was paid by the NSW Police to the Australian Taxation Office. No challenge was made to that finding. (ii) history of communications 1. In understanding this case it is necessary to set out in a little detail the communications between the NSW Police and Mr Aldous about repayment of the partial and permanent disability benefit he had received. The spelling and punctuation in those exchanges, which principally took place by email, is reproduced as in the original. 2. On 28 August 2009, Ms Byatt from NSW Police Financial Services, wrote to Mr Aldous by email stating that he had received a total and permanent disablement payout of $633,488 in May 2009 and that, in accordance with clause 10.6 of the Award, Mr Aldous was required to repay the original amount awarded to him in October 2008 being $434,957.88. 3. Mr Aldous replied by email on 1 September 2009 that, "I did not get $633,488, after tax i received approx $575,000. I did not receive $437,000, after tax I received approx $310,000." Mr Aldous stated that he was "not aware that [he] was over payed and your memo here came as a surprise", but stated that he placed "this cash" (presumably referring to the "approx $575,000") in a "permanent investment for weekly payments." Mr Aldous stated that the process of having the cash returned to him from that permanent investment was difficult, as "it will come at a cost to me for the contract to be broken." He noted that "in the interim i'm seeking a loan which may take two to three weeks". Mr Aldous further requested that Ms Byatt "please make enquiries for me to return the net amount of approx. $310,000 as I won't be repaying the gross amount which i'm sure you would agree would be somewhat unfair." 4. On 18 September 2009, Ms Byatt wrote by email to Mr Aldous explaining that she had "spoken to [her] Manager regarding the repayment of your P.P.I. [partial and permanent disability] benefit", and her Manager had proposed a plan of "(i) Repayment of the Net Amount of $300,945.88 within the next 14 days (i.e. no later than 2nd October 2009) [and] (ii) Repayment of the balance outstanding (Tax Component) $134,012 by 1st December 2009." 5. Ms Byatt further stated that "as previously advised Adrian, the moment your account is settled in full, NSW Police will write to the ATO advising them of this, and you will be able to submit an amended return to reclaim the tax previously paid." 6. On 24 September 2009, Ms Byatt sought confirmation by email from Mr Aldous about whether her Manager's proposal was acceptable and asked when he would be making repayment. Mr Aldous replied on 24 September 2009 stating "that's fine rosemary. thanks adrian". 7. On 2 October 2009, Ms Byatt emailed Mr Aldous saying "please don't forget to deposit your PPI Instalment of $300,945.88 as agreed by the 2nd Oct." 8. On 6 October 2009, Mr Aldous responded by e-mail saying "hi, i have to sell some shares, which wasn't a good time last week. Should be okay this week, so cash will be no later than friday week. thanks adrian". 9. On 15 October 2009, Ms Byatt emailed Mr Aldous saying "can you please confirm when you will be making payment because I need to provide an update for my Manager." 10. On 20 October 2009, Mr Aldous responded saying "good morning rosemary, hopefully later this week or next week. i'm waiting for an accountant to get back to me, with a direction on where to best obtain this cash from to minimise tax. thanks, adrian." 11. On 5 November 2009, Ms Byatt sent an email to Mr Aldous saying "can you please respond to this email – I haven't heard from you since the 20th October regarding your outstanding PPI Repayment of $434,957.88. As you can appreciate, the original invoice was raised in June and the debt is now extremely overdue. We need you to settle this account as soon as possible to avoid further action." 12. On 10 November 2009, Mr Aldous replied saying "thanks rosemary, sorry, i completed a response for you last week. Unfortunately, it didn't go thru. I haven't forgotten, nor do I wish for any ACTION. I have the cash and can only say you WILL get it shortly. As stated previously, i did assume both payments were mine when i received them as would most people. Therefore, it has caused a few problems, which take time to rectify to my advantage. within the next week or two. adrian." 13. On 22 January 2010, Mr Andrew Reid, a Legal Officer from the NSW Police Force Office of the General Counsel, wrote a letter to Mr Aldous saying "we confirm that you are required, on receipt of a total and permanent disability entitlement (TPD), to repay any partial and permanent entitlement under clause 10.6 of the Award. If the entitlement is not repaid by 7 February 2010, we are instructed to commence recovery proceedings for breach of Award and interest and costs". (iii) recovery proceedings 1. On 23 March 2010, Ms Byatt forwarded to Mr Lee, from the NSW Police, a confirmation from First State Super that the net total and permanent disablement benefit paid to Mr Aldous was $582,470.05 (after tax) and the gross figure was $633,488. Ms Byatt requested that Mr Lee proceed with filing a Statement of Liquidated Claim as soon as possible. 2. The original Statement of Claim in these proceedings was filed on 7 April 2010. It was common ground that before this date Mr Aldous had repaid $158,000 to NSW Police as part repayment of the Partial and Permanent Disability benefit he had received. 3. In the proceedings before the primary judge, the NSW Police sought to recover the outstanding balance, being $276,957.88 (the difference between the $434,957.88 repayment sought in the NSW Police Force's letter of 22 January 2010 and the $158,000 already repaid by Mr Aldous), plus interest. 4. At some time during 2010, Mr Aldous says that he had a conversation with a lawyer for the NSW Police, Andrew Reid to the following effect (spelling as in original): "Mr Aldous: Andrew how bloody stupid to send me money that wasn't mine, I have told you we have the house on the market and I will pay you the remaining $200,000 when it sells, I have all my money in shares and there not doing too well, its not a good time to sell" Mr Reid: Adrian I understand the situation, you just take care of your health and keep me updated, would it be okay if I call to check on the situation with your home from time to time. Mr Aldous: yes of cause, the quicker the home sells the better it will be." 1. Judgment was originally entered against Mr Aldous on 6 February 2013. That judgment was set aside on 13 August 2014 (Aldous v State of New South Wales [2014] NSWCA 280) for reasons not presently material. The matter was remitted to the District Court and dealt with by the primary judge on 24 November 2017. Primary judgment 1. The primary judge found that Mr Aldous had signed the Deed. His wife, Belinda Aldous, had witnessed his signature. The primary judge found that the evidence established that Mr Aldous, at the time he signed the Deed, was capable of understanding the general nature of what he was doing and that he understood that he could not keep both the total and permanent disablement benefit and the partial and permanent disability benefit should he receive both. The primary judge found that: 1. the law does not prescribe any fixed standard of sanity as a requisite for the validity of all transactions. It requires, in relation to each particular matter or piece of business transacted, that each party shall have such soundness of mind as to be capable of understanding the general nature of what he or she is doing by his or her participation: Gibbons v Wright (1954) 91 CLR 423; [1954] HCA 17 at 438; and 2. ordinarily, the nature of the transaction means the "general purport" of the instrument, but in some cases it may mean the effect of a wider transaction which the instrument is a means of carrying out: Gibbons v Wright at 438. 1. The primary judge also found that the contemporaneous medical evidence, including expert evidence adduced at trial, did not cast doubt on Mr Aldous' ability to understand the general nature of the issue addressed by the Deed. The primary judge found that there was no evidence to show that the NSW Police knew or ought to have known there was an issue as to Mr Aldous' competence at the time he signed the Deed. The medical evidence did not suggest that Mr Aldous' condition would have impaired his ability to comprehend the Deed. 2. Mr Aldous gave evidence that he assumed that any total and permanent disablement benefit payment would be adjusted by the NSW Police and the insurance company to deduct the difference between that benefit and the prior partial and permanent disability benefit payment. He stated that he did not understand the total and permanent disablement benefit payment was not his in full when he banked the cheque. 3. The primary judge did not accept that Metlife should have deducted the amount repayable by Mr Aldous and sent it directly to the NSW Police because Mr Aldous had authorised that arrangement by signing the Deed. This was because the Deed authorised, but did not require, Metlife to make the repayment to the NSW Police. Secondly, Mr Aldous had signed the Deed undertaking to make repayment to the NSW Police, and the fact that he had asked Metlife to pay the NSW Police directly did not relieve him of the obligation to refund it himself if Metlife failed to do so. 4. The primary judge found, applying Maund v Crown in right of the State of New South Wales [2013] NSWCA 226, that Mr Aldous must repay to the NSW Police the gross amount of the partial and permanent disability benefit he received. 5. The primary judge rejected Mr Aldous' reliance on an alleged promise made by a police lawyer, Mr Reid, about the sale of Mr Aldous' property. The primary judge found that the conversation with Mr Reid recorded at [26] above that Mr Aldous deposed to in his 20 December 2016 affidavit did not set out any such agreement, and secondly, the property in question was sold for approximately $770,000 in September 2011 and the money was not repaid by Mr Aldous. 6. The primary judge did not accept Mr Aldous' submission that the NSW Police and Metlife had engaged in entrapment, creating the prospect of financial disaster and imposing unnecessary stress upon him. 7. Her Honour found that Mr Aldous did not lead any evidence about the relationship between the NSW Police and Metlife. The primary judge was not satisfied that there was any evidence of any irregularity in the dealings between the NSW Police and Metlife. The primary judge declined to find that this allegation, if made good, gave rise to a defence to the NSW Police's claim or that it gave rise to a cause of action by Mr Aldous against the NSW Police. 8. The primary judge rejected Mr Aldous' claim of unconscionability. Her Honour found that Mr Aldous was not operating under some special disability or disadvantage and found, in any event that there was no evidence that the NSW Police knew of and unconscientiously took advantage of any relevant disability or disadvantage suffered by Mr Aldous. 9. The primary judge rejected Mr Aldous' case that he was unfairly exploited, disadvantaged and victimised by the NSW Police, and that they ignored their fiduciary duty to him to ensure Metlife made the deduction allowed by the Deed. Her Honour found that at the time of payment of the total and permanent disablement benefit Mr Aldous was no longer a police officer and was not owed a fiduciary duty. Secondly, even if he was owed a duty, her Honour concluded that Mr Aldous did not demonstrate how it was that the NSW Police could ensure that Metlife made the deduction. 10. Mr Aldous' cross-claim pleaded that the Deed was unjust and sought "Relief Under the Contracts Review Act". The primary judge was not persuaded that Mr Aldous demonstrated any relevant injustice. Her Honour did not accept that there was relevant unfairness in requiring repayment of a benefit to which Mr Aldous had no entitlement. Grounds of Appeal 1. The notice of appeal contained five grounds of appeal, each with lengthy particulars. The notice of appeal contains a mixture of factual and legal contentions and is not always easy to understand. 2. As Mr Aldous was not legally represented, an amicus curiae was appointed by the Court. Mr R Perla appeared and made submissions. The Court is grateful for Mr Perla's assistance. It is convenient to address the submissions made by Mr Aldous and the amicus together. 3. The amicus submitted that Mr Aldous' grounds of appeal fell into four categories: 1. a denial of procedural fairness by the primary judge in failing to permit the appellant to amend his defence and cross-claim (ground 1); 2. that the primary judge misapplied the relevant legal principles (grounds 2-3); 3. that the primary judge erroneously misunderstood the effects of the appellant's health (ground 5); and 4. that the primary judge erred in finding that the respondent did not owe the appellant a fiduciary duty (ground 4). 1. This is a convenient framework for analysis; however I will also address the additional submissions made by Mr Aldous outside the framework suggested by the amicus. Ground 1 of the appeal - procedural fairness 1. Mr Aldous submitted that he was denied procedural fairness in the District Court. Mr Aldous submitted that he "[felt] that I was up against it from the start", based on Balla DCJ indicating that the trial had been going on for quite some time and that his affidavit was from 2016. Mr Aldous submitted that Balla DCJ did not acknowledge, on the first day of the trial, that she had received, read or understood the pre-trial submissions. Mr Aldous submitted that he was questioned repetitively during the trial by opposing counsel and suggested that Balla DCJ should have intervened on his behalf, leading to him "feeling during the trial that I wasn't given a fair rub of the green as far as fairness goes". Mr Aldous submitted that he was not allowed to ask questions because Balla DCJ indicated that he had not pleaded the issue in question. He submitted that this was "a straight out denial of procedural fairness in the circumstances." 2. Mr Aldous submitted that Balla DCJ "was unfair in her assessment" and that her Honour was "blaming me for the years that [the litigation] has gone on" but that the reason for the extended litigation was actually the conduct of the NSW Police. Mr Aldous submitted that he attempted to subpoena documents from the NSW Police in relation to the Deed but he was told they were not relevant. Mr Aldous submitted that Balla DCJ's reliance on the fact that he received a second payment was misplaced, insofar as he believed the second payment already had the amount of the partial and permanent disability benefit deducted. 3. The amicus submitted that while Balla DCJ did not prevent the appellant from asking questions of any witness on any topic, there was a notice to produce issued to the respondent, which the respondent argued was not relevant. Nothing was produced in answer to the notice. The appellant did not further take up the matter at trial. Grounds 2 and 3 - misapplication of legal principles 1. Mr Aldous' written submissions do not address, at least in any direct way, the basis of the complaints listed as grounds 2 and 3. I am prepared to infer from those submissions, and what he said orally, that those grounds should be understood as addressing the claim that he made of unconscionable conduct. 2. Mr Aldous submitted orally that the NSW Police (and perhaps the Judicial Officers he appeared before) have acted unconscionably. Mr Aldous suggested that the original barrister who assisted in drafting his submissions was biased. He submitted that "[the barrister] doesn't work for the little guys like me". He submitted that the barrister "was also representing other police in the blue ribbon scheme when he was supposedly representing me." Mr Aldous submitted that "it just wasn't believable that such an experienced barrister could make… such underlying mess of the pleadings." 3. The amicus submitted that the crux of Mr Aldous' argument on these grounds had three tiers. First, when Mr Aldous received the cheque for total and permanent disablement benefits he did not receive any instructions or reminders to return the money. Secondly, as Mr Aldous had no idea that the money was not his in full he says he banked the cheque to his share trading account. Thirdly, 22 months had passed since he had signed the Deed, and then a further 3 months before he was advised that there had been no deduction made by Metlife. Mr Aldous' complaint should be understood as being that the NSW Police had acted unconscionably. Ground 5 - the appellant's health 1. Mr Aldous said that he understood that the onus was on him to prove that he was unfit to sign the Deed in 2007, and submitted that he "more than satisfied the requirement that he should not have been signing deeds". He submitted that at trial he led evidence of his PTSD and depression through an expert witness, Dr Klug, and through his wife Linda. He made frequent reference to his problems with gambling. 2. Mr Aldous submitted that when he signed the Deed he "simply signed something"; that he "had no dealings with documents", but did not expect that "that deed wouldn't do what it says it would do". 3. The amicus submitted that the appellant's submissions should be understood as being that the trial judge incorrectly made findings relevant to his psychiatric state as at the time of signing the Deed on 25 July 2007. Her Honour made findings that the appellant made it clear he knew he could not keep both payments at the time he signed the Deed. The amicus submitted that the appellant has never asserted he could keep both payments, rather that he should not have received the full amount of the second payment and had assumed Metlife had deducted the first payment from what he received. 4. The amicus submitted that Dr Klug expressed an opinion that was supportive of the appellant's argument that at the time of signing the Deed, given the severity of his symptoms at that time, it was likely his mental state had an impact on his ability to appreciate and understand the specifics of the Deed. The amicus accepted that Balla DCJ ultimately found that the evidence that the appellant understood the general nature of the Deed when he signed, and the finding was determinative of his competency to sign the Deed. Ground 4 – fiduciary duty 1. Mr Aldous submitted that the NSW Police breached a duty, which he described as a fiduciary duty, to him in connection with the payment to him of the total and permanent disablement benefit, namely that they failed to require Metlife to deduct the difference between the partial and permanent disability benefit and total and permanent disablement benefit before he received the lump sum payment. 2. The amicus submitted that Mr Aldous' references to "fiduciary duty" should be understood as being to a "duty of care". The amicus submitted that this duty of care included a duty to avoid the appellant suffering from a psychiatric condition as a result of his employment. 3. The amicus submitted that, as part of the scope and content of this duty, the appellant having given authorisation to Metlife to deduct the partial and permanent disability benefit from the total and permanent disablement benefit, the NSW Police should have caused them to do so, rather than obliging Mr Aldous to make repayment. 4. Balla DCJ found that no fiduciary duty existed. The amicus submitted that Balla DCJ's judgment did not go further than that finding, and that her Honour did not undertake an examination of the salient features of whether a duty of care was owed in circumstances where the appellant was no longer an employee of the NSW Police. 5. Mr Aldous' ground 4 also complains that he and the NSW Police reached an agreement that he would sell his house and repay the money from the proceeds, but that the NSW Police, in obtaining judgment against him, reneged on that agreement. 6. Finally, Mr Aldous submitted that the Deed was created and drafted by the NSW Police and that "it's just wrong" to "be held to something that may or may not be happening", in this case being held to repay the partial and permanent disability benefit on receipt of the total and permanent disablement benefit. Mr Aldous submitted that the Deed "wasn't negotiable; it was short of where it should have been. It should have been read and explained by a solicitor…". Mr Aldous submitted that the Deed contravened section 9(2)(a) of the Contracts Review Act 1980 (NSW), in that there was material inequity in bargaining power between him and NSW Police, and the Deed was not subject to negotiation. Consideration Ground 1 - procedural fairness 1. Mr Aldous' submissions essentially addressed: 1. an asserted denial of his request in his written submissions below for leave to amend his pleadings; and 2. the fact that he was not allowed to raise as an issue an alleged change to the form of the repayment deed used by the NSW Police. This involved a subpoena said to have been issued to the NSW Police. 1. As to the first matter, Mr Aldous' request for leave to amend his pleadings was made in his final written submissions. The application was to the effect that if the primary judge took the view that Mr Aldous' pleadings were deficient in some (unidentified) way, he should be given leave to amend "to accommodate the real evidence". No form of any amended pleading was ever proposed to the primary judge. 2. The failure of the primary judge to grant leave to amend at large during or at the conclusion of the hearing was not an error and did not give rise to any procedural unfairness. A litigant has no right to an order granting leave to amend a pleading at large, without identifying the content of the proposed amendment. 3. For the purposes of the appeal Mr Aldous prepared a document entitled "Amended Statement of Cross Claim". That document does not establish that Mr Aldous was denied procedural fairness. No intelligible cause of action beyond the issues identified by the primary judge is pleaded in that document. 4. There was no denial of procedural fairness in the primary judge failing to advise Mr Aldous during the hearing about the best way in which he might amend his pleadings. The duty of a trial judge to assist an unrepresented litigant was explained by Gleeson JA (with whom Beazley P and Barrett JA agreed) in Bauskias v Liew [2013] NSWCA 297: "[66] The appellants' submissions raise the issue of the role of the Court in ensuring a fair hearing. The Court's duty to unrepresented litigants was examined in Hamod v State of New South Wales [2011] NSWCA 375 at [309]-[316] by Beazley JA (as her Honour then was) where the authorities are collected. The following propositions emerge from those authorities relevant to the present case. [67] First, the Court's obligation in the case of a self-represented litigant is to give sufficient information as to the practice and procedure of the Court to ensure that there is a fair trial to both parties. The application of this principle will vary depending upon the circumstances of the case: see Jae Kyung Lee v Bob Chae-Sang Cha [2008] NSWCA 13 per Basten JA at [48]; Abram v Bank of New Zealand (1996) ATPR ¶41-507, 43,341, 43,347; Microsoft Corporation v Ezy Loans Pty Ltd [2004] FCA 1135; (2004) 63 IPR 54; Pezos v Police [2005] SASC 500; (2005) 94 SASR 154. [68] Secondly, the Court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. This is why the duty is usually stated in terms that require that the impartial function of the judge is preserved, whilst also requiring the judge to intervene where necessary to ensure the trial is fair and just: see Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100 at [95]; Barghouthi v Transfield Pty Ltd [2002] FCA 666; (2002) 122 FCR 19 at 23; NAGA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 944 at [11]; Nagy v Ryan [2003] SASC 37 at [52]-[53]. [69] Thirdly, the duty of a trial judge to assist an unrepresented litigant does not extend to advising the litigant as to how his or her rights should be exercised. That is, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant: see Bhagwanani v Martin [1999] SASC 406; (1999) 2004 LSJS 449; Clark v State of New South Wales (No 2) [2006] NSWSC 914. [70] Fourthly, the trial judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness. In this regard, an unrepresented party is as much subject to the rules as any other litigant: Rajski v Scitec Corporation Pty Ltd (Court of Appeal, 16 June 1986, unreported) per Samuels JA at 14." 1. No error is discernible in the approach of the primary judge to Mr Aldous' complaints about his own pleadings and the barrister who he said prepared them. No denial of procedural fairness has been established by the way this issue was addressed. 2. As to the second matter, Mr Aldous had issued a notice to produce dated 25 October 2017 directed to an alleged change to the standard form of repayment deed used by the NSW Police. The primary judge marked the notice to produce as MFI 1. The terms of the notice to produce were not before this Court, but it is apparent that it did not call for documents but rather called upon the NSW Police to prepare a report. An affidavit was prepared on behalf of the NSW Police stating that there were no documents to produce in answer to the notice to produce. That affidavit, which was not before this Court, was also part of MFI 1. 3. Her Honour accepted the position stated in the affidavit that the documents sought by the notice to produce did not exist but made clear to Mr Aldous that "if you want to make an application about some noncompliance with either an order or some other procedure that you have taken that complies with the rules I'll hear it". Although Mr Aldous stated in this Court that a "subpoena" had previously been issued to the NSW Police about this issue, he told the primary judge that no subpoena existed. No subpoena was in the material before this Court. Following the invitation by the primary judge, Mr Aldous explained that he had sent an email to the NSW Police with some questions about the form of the deed (presumably meaning the form of a template deed used by the NSW Police referred to in clause 10.6 of the Award). The primary judge responded that she was "not letting you ask them the question because it's not pleaded". 4. No error has been shown in the primary judge's conclusion that the issue sought to be agitated by Mr Aldous was not relevant to any pleaded issue. In any event, the primary judge's approach to the notice to produce does not demonstrate any denial of procedural fairness. 5. Ground 1 should be dismissed. Misapplication of legal principles - grounds 2 and 3 1. Grounds 2 and 3 of the notice of appeal raise numerous assertions of fact and law. As I understand those grounds, the substance of the complaint is that the primary judge failed correctly to deal with Mr Aldous' allegations of unconscionable conduct. 2. I accept the submission of the amicus that the factual background of the complaints advanced under these grounds had three tiers. In essence, Mr Aldous' complaint was that a deduction of the amount of the partial and permanent disability benefit should have been made by Metlife and/or the NSW Police from the amount of the total and permanent disablement benefit. 3. In cases in which relief has been sought on the basis of unconscionable conduct, the special disability or disadvantage has been identified as an inability of the individual to look after their own interests by reason of some attribute of age and lack of understanding of language: Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; [1983] HCA 14; failing intellect and/or drunkenness: Blomley v Ryan (1956) 99 CLR 362; infatuation and dependence: Louth v Diprose (1992) 175 CLR 621; [1992] HCA 61; and special dependence: Bridgewater v Leahy (1998) 194 CLR 457; [1998] HCA 66. In Blomley v Ryan, Kitto J said of unconscionability at 415: "This is a well-known head of equity. It applies whenever one party to a transaction is at a special disadvantage in dealing with the other party because illness, ignorance, inexperience, impaired faculties, financial need or other circumstances affect his ability to conserve his own interests, and the other party unconscientiously takes advantage of the opportunity thus placed in his hands." 1. I accept Mr Aldous' submission that he has never asserted that he could or should keep both payments. Mr Aldous accepted that at the time he signed the Deed he understood that the partial and permanent disability benefit amount "would have to be deducted or repaid" if he subsequently became entitled to a total and permanent disablement benefit. 2. Mr Aldous' compliant, expressed in various ways, is that he assumed the NSW Police had ensured that Metlife had deducted the partial and permanent disability benefit amount from the total and permanent disablement benefit amount he was paid I am prepared to assume, in Mr Aldous' favour, that at the time he received the total and permanent disablement benefit amount he assumed that the earlier partial and permanent disability benefit amount had already been deducted from the total amount he received. That conclusion, however, does not establish that the conduct of the NSW Police was unconscionable. 3. The primary judge was correct to conclude that there was no relevant unfairness or unconscientious taking advantage of Mr Aldous in the conduct of the NSW Police in requiring repayment of a benefit to which Mr Aldous had no entitlement. There was no injustice in the circumstances relating to the Deed at the time it was made, given that it required repayment of the partial and permanent disability benefit amount only if Mr Aldous received the larger total and permanent disablement benefit amount. There was no injustice in the circumstances relating to the attempts to recover the payment made to Mr Aldous to which he was not entitled. 4. The email correspondence set out at [11]-[22] above demonstrates that Mr Aldous was not operating under some special disability or disadvantage at the time the total and permanent disablement benefit amount was paid. Further, there is no evidence that the NSW Police knew of and unconscientiously took advantage of any disability or disadvantage in a way that affected the ability of Mr Aldous to make a rational judgment about his own best interests. Absent such proof, unconscionability could not be made out: Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392; [2013] HCA 25 at [161]. 5. Grounds 2 and 3 should be dismissed. Ground 5 - the appellant's health 1. The primary judge was correct to find that Mr Aldous was capable of understanding the general nature of what he was doing at the time that he signed the Deed. Gibbons v Wright, which was relied upon by her Honour, identified the relevant legal principles, which were not challenged on the appeal. Whether Mr Aldous had the capacity to understand the general nature of the Deed is to be assessed against the particular transaction. 2. The essential purpose of the Deed was to set out the consequences for Mr Aldous of receiving both a partial and permanent disability benefit and a total and permanent disablement benefit. Mr Aldous' evidence was that he understood at the time of signing the Deed (and now) that if he received a total and permanent disablement benefit he would be obliged to repay to the NSW Police the partial and permanent disability benefit. 3. While the appellant's medical witness, Dr Peter Klug, gave evidence that Mr Aldous' psychiatric problems in 2007 "had the capacity to affect [Mr Aldous'] cognition and understanding of the [Deed] at the time", the primary judge correctly recorded that Dr Klug made concessions in cross-examination including that he would not expect Mr Aldous to have had difficulty generally understanding the Deed. Dr Klug stated in cross-examination, relevantly, that: "Q: Given the discussion we've had and the clinical materials from the relevant period of time, you're not suggesting, are you, that he [Mr Aldous] didn't have a general understanding of what the import of the deed was, are you? A. I'm not suggesting that, no. Q: You're not suggesting that he didn't understand that as he told us yesterday he couldn't keep both benefits, are you? A: I don't know. Q: An understanding of that nature is not inconsistent with his diagnosis, is it? A: Correct." 1. It is possible, as the amicus submitted, that Dr Klug's evidence supported a finding that Mr Aldous' mental state impacted on his ability to appreciate and understand the specifics of the Deed. Dr Klug's evidence did not, however, undermine the primary judge's finding that Mr Aldous understood the general nature of the Deed at the time he signed it. 2. The medical report of Dr Selwyn Smith of 1 February 2007, took the matter no further. Dr Smith in that report suggested that the appellant had difficulty focusing and concentrating and could not follow complex instructions. Dr Smith also said that Mr Aldous did not have perceptual or psychotic disturbances. That evidence did not, however, undermine the primary judge's finding that Mr Aldous understood the general nature of the Deed at the time he signed it. 3. Finally, I should make clear that the primary judge did not find, as was submitted, that Mr Aldous was advised about the language of the Deed. Her Honour concluded, as she was entitled to on the evidence, that during June and July 2007, at the time of signing the Deed, Mr Aldous had engaged two firms of solicitors, Turner Freeman in relation to his Workers Compensation Act 1987 (NSW) claim and Oates & Smith in relation to his common law claim. The primary judge found that there was no contemporaneous evidence of any concern by these solicitors about Mr Aldous' capacity to comprehend documents sent to him on his behalf in June and July 2007, nor was it mentioned in the correspondence they sent during those months. 4. Ground 5 should be dismissed. Ground 4 - breach of fiduciary duty 1. Mr Aldous' breach of duty claim focused on an alleged breach of duty by the respondent in connection with the payment to him of the total and permanent disablement benefit, namely that the NSW Police failed to ensure Metlife deducted the amount of the partial and permanent disability benefit from the total and permanent disablement benefit amount before making the payment to Mr Aldous. 2. The primary judge rejected what Mr Aldous described as his fiduciary duty claim. The primary judge found that no relevant fiduciary duty was owed by the NSW Police to their former employee Mr Aldous to prefer his interests over those of the NSW Police. No error has been shown in that conclusion. Secondly, the primary judge found that there was no breach of the asserted fiduciary duty. Her Honour found that Mr Aldous did not demonstrate that the NSW Police could have ensured that Metlife made the deduction he claimed ought to have been made from the total and permanent disablement benefit amount. No error has been shown in that conclusion. 3. To the extent that Mr Aldous' true complaint in ground 4 was, as the amicus submitted, an alleged breach of a duty of care, any duty alleged to be owed would have to accommodate the provisions of the Award and the contractual relationship between the parties established by the Deed. The Deed simply reflected the terms of Mr Aldous' entitlements under the Award. The Deed provided that if Mr Aldous became eligible for either a clause 7 or 8 benefit, he would either remit the amount he had received as a partial and permanent disability benefit to the NSW Police within 14 days, or Metlife would be irrevocably authorised to deduct and pay directly to the NSW Police the total amount paid as the partial and permanent disability benefit. Metlife was permitted but not required to deduct and pay directly to the NSW Police the total amount paid as the partial and permanent disability benefit. 4. A duty upon the NSW Police to ensure that Metlife deducted the amount of the partial and permanent disability benefit before paying the total and permanent disablement benefit amount to Mr Aldous would be inconsistent with the parties' obligations under the Deed. Even assuming that the primary judge should have addressed the asserted duty of care in greater detail, her Honour correctly concluded that the NSW Police did not owe Mr Aldous a duty of care which was inconsistent with the contractual relationship between the parties established by the Deed. 5. Further, the e-mail exchanges recited at [11]-[22] above demonstrate that shortly after the payment of the total and permanent disablement benefit amount, Mr Aldous was informed by the NSW Police that he was required to repay the partial and permanent disability benefit amount, that Mr Aldous understood that he was so required, that he agreed to make the repayment, that he had sufficient assets to make the repayment and that he informed the NSW Police of all of these matters. No breach of any asserted duty of care or any causal link between any alleged breach and any loss and damage allegedly suffered by Mr Aldous was shown. 6. Mr Aldous' ground 4 also complains that he and the NSW Police had an agreement that he would sell his house and repay the money from the proceeds, but that NSW Police, in obtaining judgment against him, reneged on that agreement. The primary judge correctly rejected Mr Aldous' reliance on the alleged promise made by Mr Reid about the sale of Mr Aldous' property in the conversation recorded at [26] above. That conversation does not establish any such agreement. Further, the primary judge found that the property in question was sold for approximately $770,000 in September 2011 and the money was not repaid by Mr Aldous. That finding was not challenged on appeal. 7. Finally, Mr Aldous' reliance on s 9(2)(a) of the Contracts Review Act 1980 (NSW), should be rejected. No error has been shown in the conclusions of the primary judge. Mr Aldous failed to demonstrate any relevant injustice in the provisions of a Deed requiring repayment of a benefit to which Mr Aldous had no entitlement, or in its ultimate operation as reflected in the e-mail correspondence recited at [11]-[22]. 8. Mr Aldous' complaints about the respondent's conduct of the litigation and enforcement measures it took are not pleaded in his grounds of appeal and, in any event, cannot give rise to a defence to the claim brought by, or cause of action against, the respondent. 9. Ground 4 should be dismissed. Conclusion and orders 1. For the foregoing reasons Mr Aldous' appeal must be dismissed. 2. Mr Aldous must pay the costs of the appeal as agreed or assessed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 November 2018