218 I stress that Ms Higgins is not a party: no findings in this proceeding bind her and, of course, no relief is sought in this proceeding in relation to the Commonwealth Deed. It is not my role to comment upon the merits or otherwise of the Statutory Causes of Action made against the Commonwealth or others; the nature or quantum of the compensation sought; the process by which the settlement occurred; nor the quantum of the resolution sum or the scope of releases. My focus is solely upon Ms Higgins' present creditworthiness.
219 As Annexure E reveals, submissions were made on this topic of credit as it related to the Commonwealth Deed consistently with the express agreement between the parties. I initially thought that in its written submissions, Network Ten was backsliding and flirting with a contention it would be procedurally unfair to make findings as to the falsity of representations made by Ms Higgins in the Commonwealth Deed, but I was disabused of my misapprehension in supplementary submissions and Network Ten further acknowledged that any false representations made in the Commonwealth Deed could be relevant to the credit of Ms Higgins.
220 One would have thought this was an obvious and proper concession given the nature of the occasion upon which the representations were made, but it is now necessary to deal also with separate submissions made by Ms Higgins.
221 Ms Higgins makes points which can be dealt with in two broad categories:
- (1) there are procedural difficulties in that it would be "grossly unfair" for any allegations concerning the Commonwealth Deed to be used against Ms Higgins given the lack of cross-examination by Mr Lehrmann's counsel on the topic;
- (2) there are evidentiary difficulties in that: (a) the circumstances in which the Commonwealth Deed came to be prepared, agreed and executed have not been explored; (b) Ms Higgins should not be presumed to comprehend or be familiar with a complex formal document in the same way as a lawyer; and (c) the mediation occurred shortly after she was hospitalised, and there is "an enormous lacuna" in the evidence as to Ms Higgins' subjective state of mind upon which any finding of dishonesty could be made in relation to the contents of the Commonwealth Deed.
