“The community has a public interest in the efficient settlement of litigation. The confidentiality of settlements is an aid to such an objective. I also accept that Skycity itself has a private right that the communications leading to its compromise with Ms Winra be kept confidential and not potentially used as a tool to influence these proceedings. In White v Overland Allsop J (as His Honour then was) said as follows:
o “The privilege is rooted in public policy – in the encouragement and promotion of settlement of disputes: Cutts v Head  1 Ch 290, 305-306; Rush and Tompkins v Greater London Council  UKHL 7;  3 All ER 737, 739-740. There is a public benefit in, and a private right to, the confidentiality of such negotiations: see generally McNicol The Law of Privilege (1992) p 438. The latter underpinning reflects the tacit acceptance and agreement of the parties as to the confidentiality and limited purpose to which the communications can be used.”
In addition and significantly, I am not entitled to infer the intent of decision makers, in general protection cases, from extraneous circumstances. That is deduce that because Ms Celand played a part in Ms Winra’s action against Skycity, which resulted in Skycity settling the case, therefore relevant decision makers, at the respondent, are ill-disposed against her.
The court’s obligation is to illicit the substantial and operative reason why relevant persons acted, as they did vis-à-vis Ms Celand. In my view, in addition to the objections arising under section 131(1) of the Evidence Act, the evidence of the settlement between Skycity and Ms Winra is not relevant to these proceedings, as it represents an attempt, on Ms Celand’s part, to induce the court to conjecture as to the subliminal or subconscious motivations of management in its actions taken in respect of Ms Celand.
In Barclay Heydon J expressly prohibits the court from attempting to illicit any unconscious reason as to why an employer took the particular adverse action in question. His Honour rejected any notion that there could be a difference between “what actuated the conduct in question and what the person in question thought he or she was actuated by.”
Celand v Skycity Adelaide Pty Ltd (2016) FCCA 399 delivered 29 February 2016)