Given what occurred at trial, there is no basis to contend inter partes that there is any fetter upon Mr Lehrmann making the submissions he now advances (and none is suggested to arise). But even so, to make doubly sure, as Annexure E indicates, given Ms Higgins herself has now raised a point about procedural unfairness, notwithstanding: (a) the background set out above; (b) the other matters in Annexure E; and (c) the appearance of her representatives on 7 December 2023 when the agreement between the parties was announced, I allowed Ms Higgins the opportunity of making an application to seek to defer judgment to allow her to be recalled to give evidence if she so wished. Such an application to address the supposed procedural unfairness to a witness, by a witness, would not, obviously enough, have been an application under s 46 EA, but there would have been ample power to make an order facilitating that course if I was convinced it was necessary to assure fairness: see s 11 EA. She did not do so.
Suggested Evidentiary Difficulties
232 To the extent Ms Higgins suggests the Court would not make an adverse finding as to the evidence she gave regarding her understanding of the Commonwealth Deed when she was cross-examined on its effect prior to production, as is evident from [215] above, that issue can be put to one side.
233 Although how the Commonwealth Deed came to be agreed and executed has not been the subject of detailed evidence, Ms Higgins accepts she was represented by "Blumers Lawyers, personal injury lawyers, to act for her in relation to her civil claims against the Commonwealth, which were settled following a mediation on 13 December 2022" (Ex 59). Moreover, if one has regard to Ms Higgins' evidence (see [224] above), and the execution page of the Commonwealth Deed, she signed, sealed, and delivered the document on that day in front of her current solicitor, Mr Zwier.
234 There is no evidence before me as to the extent of Mr Zwier's retainer at the mediation, and I am well aware the act of attestation of a deed only indicates the witness was present and witnessed the execution, and the obligation owed by an attesting witness is to perform this function properly (Ellison v Vukicevic (1986) 7 NSWLR 104 (at 112 per Young J); Graham v Hall [2006] NSWCA 208; (2006) 67 NSWLR 135). But even leaving aside the precise content of any duty of either of her two solicitors present, as a matter of commonsense, it is difficult to accept that I ought not infer it is more likely than not that a senior and highly
