experienced solicitor would only witness the execution of a document of such importance if satisfied the person executing under seal was mentally competent to do so and understood, at least in general terms, the nature of what was happening (a fortiori if that person, in one form or another, was a client).
235 However, for reasons I will now come to, by reason of the limited relevance of the Commonwealth Deed for present purposes, it is unnecessary to make any findings as to the mental state of Ms Higgins or her subjective understanding of particular contractual provisions when the representations were made.
Conclusion on the Commonwealth Deed and Credit
236 Having dealt with these unnecessary complications raised at the heel of the hunt, I now go back to the real point.
237 To repeat, I do not consider it necessary nor appropriate that I attempt to characterise or reach any legal conclusion as to Ms Higgins' conduct in giving the warranties contained in the Commonwealth Deed. I am only dealing with issues as to credit.
238 It is sufficient to find that through her personal injury solicitors, and more likely than not on instructions, Ms Higgins was in 2022 advancing a claim for compensation based on allegations materially the same as those she had articulated to Ms Maiden and to the Project team, the core aspects of which she had consistently maintained since at least January 2021. More specifically, representations, materially identical to central representations made in the Commonwealth Deed, had been made for almost two years and were now being used to ground the Statutory Causes of Action articulated by her solicitors. The Commonwealth Deed is useful in going some way in collecting, formalising, and providing some belated degree of coherent particularisation to what might broadly be described as the coverup allegation.
239 In this regard, and contrary to the submissions of Network Ten, the relevant issue is not whether Ms Higgins made representations (repeated in the Commonwealth Deed) in a manner consistent with her evidence, but rather whether Ms Higgins made representations contrary to the facts.
240 It is evident several things being alleged were untrue. As my findings below will establish, and without seeking to be exhaustive, it is convenient to identify sufficient examples by
