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Hill v Hughes [2019] FCCA 1267 (24 May 2019)

Last Updated: 27 May 2019

FEDERAL CIRCUIT COURT OF AUSTRALIA

HILL v HUGHES


Catchwords:
HUMAN RIGHTS – Sexual Harassment – relentless attempt to woo employee by employer – whether advances were sexual in nature – damages and aggravated damages – total compensation awarded of $170,000.


Legislation:
Australia Human Rights Commission Act 1986 (Cth), ss.46PO, 46PE, 46PF(1)(b); 46PH; 46PH(2); 46PH(1)(i); 46PH(1B)(b); 46PO(4)(d)
Sex Discrimination Act 1984 (Cth), ss.3(c); 28A

Cases cited:
Clarke v Nationwide News Pty Ltd [2012] FCA 307
Richardson v Oracle Corporation Pty Ltd [2014] FCAFC 82


Applicant:
CATHERINE MIA HILL

Respondent:
OWEN HUGHES T/AS BEESLEY AND HUGHES LAWYERS

File Number:
BRG 1161 of 2017

Judgment of:
Judge Vasta

Hearing dates:
19 and 20 March 2019

Date of Last Submission:
2 May 2019

Delivered at:
Brisbane

Delivered on:
24 May 2019

REPRESENTATION

Counsel for the Applicant:
Mr S. Priestley

Solicitors for the Applicant:
Somerville Laundry Lomax Solicitors

Counsel for the Respondent:
Ms A. Hellewell

Solicitors for the Respondent:
Beesley and Hughes Lawyers


THE COURT DECLARES

(A) That the conduct of the Respondent towards the Applicant amounted to sexual harassment.

ORDERS

(1) That the Respondent pay to the Applicant damages in the sum of $170,000 by way of compensation for loss and damage suffered because of the conduct of the Respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISANE

BRG 1161 of 2017

CATHERINE MIA HILL

Applicant

And

OWEN HUGHES T/AS BEESLEY AND HUGHES LAWYERS

Respondent


REASONS FOR JUDGMENT

Introduction

  1. The Applicant, Catherine Mia Hill, began working with the Respondent, Owen Hughes, in May 2015. The evidence shows that that the Respondent thought the Applicant was attractive and wanted to be in a relationship with her. The Respondent communicated that to the Applicant.
  2. The real issue in this case is whether the conduct of the Respondent amounted to sexual harassment.
  3. At its core, sexual harassment is a social practice of enforced inequality that demeans individuals on the basis of sex. This is especially so in the workplace. As can be seen from s.3(c) of the Sex Discrimination Act 1984 (Cth) (“the Act”), sexual harassment law seeks to address those workplace power imbalances that result from fear, silencing and the harms that flow from sexual hierarchy.
  4. For the reasons that follow, the Court finds, unequivocally, that the conduct of the Respondent is the very conduct that the law of sexual harassment seeks to eliminate.

Personal Circumstances of the Applicant

  1. The Applicant was born on 25 May 1964. She completed a Bachelor of Arts degree in the early 1990s and had lived in New York and London working as an editor in the publication industry. She married and had a child whilst living overseas.
  2. The Applicant returned to Australia in August 2004 with her husband and child and had a second child in November 2006. In 2007, she separated from her husband and began studying law part-time in 2008. She was admitted to legal practice in April 2015.
  3. After separating from her husband, the Applicant determined that she needed to find employment in the northern area of New South Wales so the children could maintain a relationship with their father who lived nearby. She was not challenged in her evidence as to her belief that there would be few jobs available in that area.

Personal Circumstances of the Respondent

  1. The Respondent is a solicitor. He is the principal of the firm Beesley and Hughes. That firm is based in Bangalow approximately 20 km north-east of Lismore. The Respondent is divorced and has one child.
  2. The evidence shows that the Respondent was a lonely man and was seeking a relationship. He had been corresponding with Ukrainian women with a view to gauging their interest in moving to Australia and commencing a relationship with him.
  3. The legal firm was small with the Respondent as principal and employing between one to three others as needed.

The Commencement of Employment

  1. In May 2015, the Applicant was interviewed by the Respondent. Because the Applicant had been unemployed for a long time, she was referred to the Respondent by an agency. The Respondent became entitled to a subsidy for employing the Applicant.
  2. The Applicant commenced employment with the Respondent the day after her interview.
  3. The Applicant began working as a paralegal and was employed for around 15 hours a week.
  4. The Applicant said, that in June 2015, within weeks of commencing employment, she was told by the Respondent that he would undertake to train her as a solicitor from 1 July 2015. On his recommendation, the Applicant applied for a practicing certificate.
  5. The Respondent asked the Applicant to work more hours and she started working 3 to 4 days per week.
  6. The Respondent told the Applicant that he had to conduct a family law matter in Sydney on Friday, 24 July 2015. He asked her if she would like to come to Sydney. The Applicant said that she believed that this was a work trip and that, because she had done a large amount of work on the legal matter in question, she would be of assistance to the Respondent.

Mediation

  1. Whilst there had not been any Family Law court proceedings, the Applicant was engaged in ongoing discussion about parenting issues with her former husband. As part of this, the Applicant was to attend a mediation with her former husband on Friday, 17 July 2015. The Respondent asked the Applicant whether she would like him to represent her at the mediation. She agreed.
  2. A consequence of this decision was that the Applicant disclosed a great deal of her personal information to the Respondent. This included details of the relationship with her former husband, the relationship she had with both her children, relationships she had had with other men after her separation and divorce (including a relationship with a person of Israeli extraction) and her dealings with apprehended violence orders (AVO).
  3. The Applicant said that on the night before the mediation (16/7/15), the Respondent telephoned the Applicant and said to her, words to the effect of, “I am very happy to be able to represent you. My feelings towards you have grown”. The Applicant said that she felt uncomfortable and apprehensive about this and did not know how to react. It seems that during this conversation, the trip to Sydney was raised. The Applicant said that she wanted her 16-year-old son, Harley, to come with her on the trip to Sydney.
  4. Notwithstanding that she wanted to tell the Respondent that his comments about his feelings towards her were “entirely inappropriate and unprofessional”, she said nothing to the Respondent. She said that she just ignored what he had said and hoped that he would not communicate with her again in this fashion.
  5. At 07:05 hours on 17 July 2015, the Respondent sent the Applicant an email. The subject line was “accommodation”. I will not reproduce the whole email but it is annexure CMH4 to the affidavit of the Applicant.
  6. Relevantly, the email was about where they would stay in Sydney. Even though the Respondent had indicated that he and the Applicant could stay with his brother in Balmain, he offered an alternative hotel in Potts Point which would be in walking distance of the Court.
  7. In that email, the Respondent said to the Applicant:-
    1. that it “meant a lot to me not just professionally that you have come into my life”;
    2. “it was so nice you trusting me with your own case”; and
    1. “it is clear we both like each other personally and well, you know a lot of relationship started in the work environment something like 60% plus according to a report on the ABC”.
  8. At 07:33 hours, the Respondent sent another email to the Applicant. The Respondent wrote about the mediation but also said that “I can talk for hours with you about this as I feel rightly I think I am the 100% comfortable with you??”
  9. The Respondent spoke further about the trip to Sydney and where he and the Applicant would stay. He then wrote: “I hope I haven’t freaked you out”.
  10. The mediation proceeded later that day. The Applicant did not feel that the mediation went well. This is important as it informs the context of later emails sent by the Respondent.

The Aftermath Emails

  1. At 17:05 hours on 17 July 2015, the Respondent sent an email to the Applicant which was exactly the same as the first one sent 10 hours earlier. He then sent another email 36 minutes later, at 17:41 hours, which said that the Respondent would ring his brother and that “Harley and I can sleep on the veranda and you can have the nice room???”
  2. The Applicant said that she spoke to the Respondent on Sunday 19 July 2015, and made it clear to him that she viewed the trip to Sydney as a work trip only and that she did not think it was appropriate for her to be sharing a room with the Respondent. She said she received another email from the Respondent soon afterwards.
  3. The Respondent gave evidence that the Applicant sent him an email which said that she wanted the trip to be a work trip only and that she did not want a relationship with the Respondent. The Respondent said that he read that email on his phone while he was riding a horse. He said that when he later went to retrieve that email so that he could reread it, it was gone.
  4. For reasons that were not adequately explained to the Court, the Respondent came to the conclusion that the Applicant had gone into the company’s email system and deleted the email. The Respondent saw this as a gesture that she actually was interested in having a relationship with him. The Respondent gave no cogent reason, apart from wishful thinking, as to why he would come to that conclusion. The Applicant denied deleting the email.
  5. Whether the Applicant told the Respondent by phone or by email that she was not interested in a relationship, it is clear that her feelings were communicated to him.
  6. Despite this, the Respondent then sent another email to the Applicant on Sunday 19 July 2015 at 17:29 hours. It is reproduced at annexure CMH5 of the affidavit of the Applicant filed 1 May 2018 and reads as follows:

I am normally so together with these things as I do not have aspergers [sic]!!!

We have achieved a lot together in our professional capacity. I know we can get there on this. I am tough on myself and too tough on you.
On the personal I am in a similar position that you are in with James.
Can I say I am just going to work it out with Alex for the sake of my older children. She is such hard work.
Rather then us go into the personal now can I say please consider the usual phone mediation then you can see where James is at and how best to get him to leave you alone?
Matter for you. I am more of an open poker player. You can also do your mediation on your own if you think that best btw.
I know you can put the genie back in the box like me, well I think you can if I am judge of character!
Anyway lets do that. Seriously I did think about Sydney maybe not enough about this but it can still be great. I am sure you are a great Mum but it would be fine for Harley on the verandah [sic]. I will be there too.
Best Owen X
PS Just go with the flow and it will be all good. Can you do that for me?
  1. For reasons I will detail later, this is a pivotal email insofar as it relates to the Applicant’s case.

The Monday before the Sydney trip

  1. One of the things that upset the Applicant about the mediation process was that she had wanted a “telephone shuttle”. At 19:10 hours on Monday, 20 July 2015, the Respondent sent an email to the Applicant telling her that he had deleted the emails that he should not have sent her. He also told her that it had been a joy to him to be working with her and he apologised for not creating a “stink” when she was denied the opportunity for a telephone shuttle.
  2. At 20:55 hours (8:55 PM) the Respondent sent another email to the Applicant. This one was headed “my report on the mediation”. It read:

The Sydney Trip

  1. The sleeping arrangement was such that there would be a bedroom for the Applicant and that Harley would sleep in the same bedroom as his mother on a mattress on the floor. Despite all the arrangements having been made for Harley to go on the trip, Harley did not travel with his mother for a reason not explained in the trial.
  2. The Applicant and Respondent flew from Ballina to Sydney and stayed with the brother of the Respondent at his home in Balmain.
  3. The Applicant said in evidence that, after having takeaway food with the brother of the Respondent and two tenants, she and the Respondent continued in conversation with these three people. The Applicant said that at about 10:00 pm, the Respondent told everyone he was going to bed. The Applicant continued her conversation for about 20 minutes before she also decided to go to bed.
  4. The Applicant went upstairs to the bedroom that she had been assigned. When she got to her bedroom and opened the door, she saw the Respondent lying on the mattress that had been set up for Harley. The Respondent was in his underwear; that is, a singlet and boxer shorts.
  5. The Applicant said that she was shocked and upset and she told the Respondent to get out of her room. She said that the Respondent answered that he could sleep in Harley’s bed and the Applicant replied “please leave; I cannot sleep with you in here”. The Respondent said that he guessed he would have to sleep outside on the veranda because that was the arrangement they had made before coming on the trip. As the Respondent stood up to leave he asked the Applicant “can I at least have a hug?”
  6. The Applicant said that she did hug him, albeit reluctantly, and the Respondent then left. The Applicant said she felt upset and compromised both personally and professionally. She said that, despite everything the Respondent had said about the trip, she now believed that he actually had ulterior motives for having her come on the trip with him.
  7. The Applicant said that the next morning she left her room to have a shower. She went to the shower with a towel around her. She returned to her room after her shower still clad in only a towel. When she entered her room, she saw the Respondent in the bedroom again lying on the mattress beside the bed.
  8. The Applicant said she told the Respondent to get out while she got dressed. She said that the Respondent replied that they had to prepare for the case and that they didn’t have a lot of time. The Applicant said she repeated her demand for the Respondent to “get out”. She said that he then left the room.
  9. The Applicant and Respondent went to Court that day and later that evening returned to the brother’s house. The Applicant said that she told the Respondent that she was upset about what had happened the night before. She told the Respondent that he had acted very inappropriately; that she had only come to Sydney to work; and, that she was not interested in a personal relationship with him. She reiterated to him that she considered that they had a working relationship and nothing more.
  10. The Applicant said that the Respondent replied that he accepted the situation and asked whether she could still carry on working for him, to which the Applicant confirmed she would.
  11. The next morning the Applicant and the Respondent went to the markets where she admired a piece of jewellery she thought her daughter would like. The Respondent purchased it for her. Later, the Applicant went to the airport to fly home whilst the Respondent remained in Sydney.
  12. The Applicant outlined that she felt compromised at this point because she needed the job and wanted to do well at the job. She was cognizant that there weren’t many positions available for junior solicitors in the Northern Rivers region and that, because of the situation with her two children and ex-husband, she felt that she could not easily relocate.

July - August 2015

  1. Upon returning from Sydney, the Applicant said that the Respondent continued to persist with his behaviour. This was despite the Applicant continually telling the Respondent that she did not want to have an intimate relationship with him.
  2. It seems that the mediation process was still continuing. On 27 July 2015, Dr Ross Wylie provided the Applicant with a medical certificate. This medical certificate is reproduced as “annexure A” to the statement/affidavit of the Respondent.
  3. The medical certificate was produced in support of a cancellation of the recent mediation. The body of the certificate read as follows:
Catherine Hill with a past diagnosis of situational anxiety, who on Monday underwent a face-to-face telephone mediation, was unable to fully participate in this process. This form of mediation exacerbated her anxiety and consequently, she feels she was not able to fully state her case clearly. Your understanding in rescheduling a shuttle the mediation is appreciated.
  1. This document is significant because it has been produced by the Respondent. It is therefore prima facie evidence that the Respondent knew of the anxiety condition of the Applicant.
  2. On Thursday 30 July 2015, the Respondent sent the following email to the Applicant at 7:33 PM:
  3. On Saturday 1 August 2015 at 11:12 AM, the Respondent wrote the following email:
  4. The Applicant testified that she again told the Respondent not to send her emails of a personal nature; that it was very stressful for her.
  5. The evidence of the Applicant was that she was concerned about losing her job as the Respondent had been rebuffed by her every time he made an advance.
  6. The Applicant said that she did go to the local pub after work on a couple of occasions with the Respondent. The purpose of these ventures was so that they could be seen by locals and hopefully drum up business. The Applicant said that one Friday in August when they were at the pub, she told him that she wanted to keep their relationship as a “great working relationship”.
  7. The Applicant said that she again told the Respondent in that conversation that the emails that he was sending were very stressful for her. She said that she told him that she didn’t have feelings towards him and that she hadn’t opened the majority of emails because she had a sense of “dread” when she saw them in her inbox.
  8. The Applicant also gave evidence that the Respondent replied that he felt that there was an energy between them. When she said to him that there was no energy, he told her that “everyone thinks we should be together”. Her reply was that she didn’t think that they should be together and that that was all that mattered.
Emails in September/October 2015
  1. The Respondent sent a number of emails to the Applicant during this time. I will not reproduce those emails in their entirety but shall refer to the relevant extracts. The nature of the communication is quite evident and the context is not diminished by highlighting the relevant passages. Lest it be thought that I have “cherry picked” parts of the email and highlighted them out of context, I stress that the context of the messages is not diminished by the non-production of the whole email. I have underlined sentences to which I will later refer.
  2. The following background is needed to better appreciate the significance of the emails.
  3. The Applicant admits that she had given the Respondent a hug on about six occasions. She said that these occurred at the end of the day as she was leaving the office. She said that the Respondent physically stood in her way so that she could not exit the room. The Respondent would say words to the effect “give me a hug” and the Applicant said she felt she had no option but to give the Respondent a hug.
  4. Melanie Campbell (“Mel”) is a woman who had known the Respondent for some time. She sporadically visited the work premises and had conversations with both the Respondent and the Applicant. Mel eventually worked with the Respondent as his assistant.
  5. The grammar used by the Respondent in these emails is atrocious and his use of the French language is even worse. For this reason I have reproduced the emails as they have been produced including any spelling or grammatical errors made by the Respondent. It is also noteworthy that the Respondent uses an “x” to denote a kiss and an “o” to denote a hug at the end of most of the emails and frequently concludes with “Love Owen”.
  6. At 7:51 AM on Friday, 4 September 2015, the Respondent sent an email to the Applicant that contained the following relevant passages:
  7. It is very difficult to interpret this email as anything other than an impassioned plea to start a relationship. The Respondent knows that he is applying pressure to the Applicant but excuses his behaviour by telling the Applicant not to “see this as pressure”.
  8. It is also difficult to interpret the last underlined part of the email as anything other than a threat that she would be replaced as an employee by Ukrainian woman who would also be romantically involved with the Respondent.
  9. At 3:31 AM on Saturday 5 September 2015, the Respondent sent an email to the Applicant that contained the following relevant matters:
  10. This is another attempt to woo the Applicant. His postscript is an acknowledgement that he is “pestering” the Applicant with the number of emails that he is writing because he said that he hopes that this would be the last letter that he would have to write to her; that is, he hopes that she will succumb to his charms.
  11. It is instructive to note that he admits that this email will not “do the trick” and that he will just try again.
  12. And try again he did some eight hours later. At 11:43 AM that same day, Saturday, 5 September 2015, the Respondent wrote a further email to the Applicant in these terms :
  13. Ten days later, at 9:07 p.m. on Tuesday, 15 September 2015, the Respondent sent an email to the Applicant that contained the following relevant passages;
  14. At 10:18 PM on Thursday, 17 September 2015, the Applicant wrote to the Respondent a clearly professional work email in the following terms:-
  15. At 3:23 PM the next day, Friday, 18 September 2015, the Respondent replied to the Applicant in the following terms:
  16. It is difficult to see how the email communication, which was very professional, could possibly elicit the response given by the Respondent.
  17. At 6:47 PM on Friday 2 October 2015, the Respondent sent an email to the Applicant that contained the following relevant passages:
  18. The Respondent has intertwined the betterment of employment of the Applicant with her commencing a relationship with him. He tells her, again, that he is not “pressuring” her, yet then proceeds to tell her of three women that he feels were propositioning him but that he would refuse their advances because of her.
  19. At 7:45 AM on Thursday, 8 October 2015, the Respondent sent an email to the Applicant in these terms:
  20. The Respondent acknowledges in that email that he had previously told the Applicant that he would desist from writing these emails. The day after this last email, the Applicant again confronted the Respondent and told him once more to stop sending her such emails. She told him again that she found it very stressful. She then said to him “it feels like harassment”.
  21. She said that the Respondent replied that “it’s not harassment; I’m just expressing my feelings”. She responded that it was harassment because she had asked him to stop writing the emails and he kept doing it and therefore it was harassment.
Emails from 12 to 15 October 2015
  1. About this time, the Applicant told the Respondent that she had a boyfriend in England (which she didn’t) hoping that this tale would convince the Respondent that she was not interested in a personal relationship with him.
  2. The Applicant believed that emails subsequently sent had a more sinister tone to them which exacerbated the stress that the Applicant had already been feeling.
  3. The Applicant again told the Respondent to stop sending her emails and she said that she didn’t even want to check her emails anymore in case she found lots of emails from him.
  4. At 11:22 AM on Monday, 12 October 2015, the Respondent wrote an email to the Applicant which relevantly said the following:
  5. Instead of been a deterrent to the Respondent, the tale of the English boyfriend simply emboldened the Respondent to redouble his efforts to woo her.
  6. At 7:23 PM the same day, Monday, 12 October 2015, the Respondent wrote an email to the Applicant which contained the following relevant passages:
  7. The Respondent seems to have assumed that the attraction to the “English boyfriend” is really subterfuge for a desire by the Applicant to go to England. So the Respondent then increases the pressure by trying to remove what he sees as “obstacles” to the two of them having a sexual relationship.
  8. It is instructive that the Respondent insists that the Applicant see his “emotional need to write emails”, yet he ignores her need to have him stop this behaviour.
  9. At 7:44 PM the same day, Monday, 12 October 2015, the Respondent wrote another email to the Applicant in these terms:
  10. That email arrived 21 minutes after the last email. The Applicant could be forgiven for thinking that she “cannot run or hide”.
  11. At 8:32 PM the same day, Monday, 12 October 2015, the Respondent wrote another email to the Applicant which contained the following relevant passages:
  12. It was only 48 minutes after telling the Applicant that he was opening himself up for her that he sent that email. It would seem that because she hadn’t responded, the Respondent then started to remind the Applicant of her employment responsibilities. Bizarrely, he blames the Applicant for “open(ing) my heart” and because of this she now has to put up with his behaviour of sending emails.
  13. It was 24 minutes later at 8:56 PM the same day, Monday, 12 October 2015, that the Respondent wrote another email to the Applicant with the following heading and contents:
  14. Just over an hour later at 9:58 PM the same day, Monday, 12 October 2015, the Respondent wrote another email to the Applicant in the following terms:
  15. There could be no other way to interpret this email other than it being a threat. The Respondent has told the Applicant that her work is substandard but it could be overlooked if she were in a sexual relationship with him.
  16. At 11:19 PM the same day, Monday, 12 October 2015, the Respondent wrote a further email with the following heading and contents:
  17. That email was sent less than 90 minutes after the previous one. The declaration that the Respondent has been “careful not to harass” the Applicant, is truly an admission that he knows that he has been harassing her.
  18. The fact that the Respondent said that he will defend any complaint is also an admission that he knows that his behaviour is behaviour that would justify a complaint. He also goes further by attempting to “bribe” the Applicant into not making a complaint in return for the Respondent’s “continuing training”.
  19. It is noteworthy that the Respondent did not conclude with love or kiss symbols but instead, used his formal “signature block” for this email.
  20. At 10:19 AM the following day, Tuesday, 13 October 2015, the Respondent sent the Applicant the same email he had sent 11 hours previously which I won’t reproduce again.
  21. At 5:04 AM on 14 October 2015, the Respondent wrote the following email to the Applicant:
  22. At 6:58 AM, the Applicant replied to the Respondent in these terms:
  23. It is noteworthy that, despite the nine emails from the Respondent between 11:22am on 12 October until 5:04am on 14 October, this is the only email correspondence written by the Applicant during this period.
  24. At 9:55 AM that same day, 14 October 2015, the Respondent wrote the following email which in fact, re-forwarded emails originally written on 12 and 13 October 2015. Those emails appear to have not previously been delivered. The whole sequence of that email trail reads as follows:

Subsequent Occurrences

  1. The Applicant started seeing a psychologist to help her deal with the stress that she was feeling. I will discuss this later in these reasons.
  2. The Applicant testified that in early December 2015, the Respondent asked her to go to Christmas drinks at a barrister’s chambers in Brisbane. She declined the offer because she did not want to find herself in a position similar to that which had occurred in Sydney in July.
  3. The Applicant testified that the Respondent sent her numerous text messages telling her how to make arrangements for her children which would allow her to go to Brisbane and stay overnight so she could attend the drinks.
  4. By this time, Mel had begun working with the firm. In February 2016, the Respondent informed the Applicant that he and Mel had begun a relationship and that she had moved into his house. The Applicant testified that she was very relieved because this would mean that the Respondent would stop directing his attentions towards her.
  5. The Applicant said that on, or about, 23 March 2016, the Respondent sent her an email in which he thanked her for “opening his heart”.
June 2016
  1. On Saturday 4 June 2016, the Respondent wrote the following email to the Applicant:
  2. The information that the Respondent uses in this email (such as the “Israeli guy” and the apprehended violence orders) was information that the Respondent obtained when he was acting as the “legal representative” of the Applicant.
  3. At 10:14 AM on Tuesday, 7 June 2016, the Applicant replied following terms:
  4. The Respondent replied the following day simply that he would see the Applicant “tomorrow”.
  5. At 4:04 PM on Wednesday, 8 June 2016, the Applicant wrote a further email to the Respondent which contained the following relevant passages:
  6. At 6:19 PM that same day, Wednesday 8 June 2016, the Respondent wrote the following email to the Applicant:
  7. At 7:59 AM on Thursday 9 June 2016, the Respondent wrote an email to the Applicant which contained the following relevant passages:
  8. The Applicant resigned soon afterwards. She finished work with the Respondent on 30 June 2016.

The Claims of the Respondent

  1. While the content of the emails is incontrovertible, the Respondent has a different view as to what the facts represent when read in context.
  2. The Respondent was at pains to point out that the emails he sent the Applicant were all after work hours and that any “hugging” occurred at the end of the work day. It seemed to be suggested that this somehow made any conduct not “work-related” and hence “not harassment”.
  3. The Respondent said that he had a conversation with the Applicant a short time after she began her employment with him. He said that he pointed out to her that there were a number of “couples” who were in business together who seemed to be doing very well. He said that after he had this conversation, he viewed the Applicant in a different light.
  4. He claimed that the Applicant was flirty and coquettish with him and wore alluring dresses and flicked her hair in a sensual manner. He said that he saw this as an indication that she was interested in him.
  5. The Respondent claimed that the purpose of the trip to Sydney was so that he and the Applicant could spend time together outside of work. He acknowledged that he did not have much money for a lavish weekend away notwithstanding that he had suggested to the Applicant that they stay at a hotel. In evidence before me he said that “I wanted to see, because of my money situation, that it was a worthwhile investment to take her to Sydney”.
  6. The Respondent then claimed that it was he who asked the Applicant to bring her son, Harley, to Sydney. He claimed that he did this to see if he could “get on with her son” and thus have a long-term relationship with the Applicant.
  7. The Respondent claimed that at the beginning of the week before they went to Sydney that the Applicant told him “I expect to be loving you before the end of the week”.
  8. The Respondent claimed that when they got to Sydney, it was a very hot night and that if he slept on the veranda (as arranged), he would have been eaten alive by mosquitoes because he had forgotten his insect repellent. He maintained this story even it was put to him that the trip to Sydney was in the middle of winter.
  9. The Respondent claimed that there was nothing inappropriate about him lying on the mattress in his underwear. He said that the Applicant asked him to leave because if he had stayed in the room, he would have, to use her words, “been too much of a distraction”.
  10. As to going into the room of the Applicant the next morning, the Respondent gave evidence that he thought that he had left some papers in the room where the Applicant was staying. This is despite there never having been an opportunity for him to have been in the room with those papers.
  11. The Respondent also claimed that during the next evening, he and the Applicant chatted intimately for over two hours with their legs touching.
  12. Relevantly, the Respondent claimed that he provided intensive training to the Applicant in her work as a paralegal and as a lawyer but admitted that he did this, partly because he believed she might be interested in him romantically. At paragraph 101 of his statement, the Respondent admitted that if he did not think (that the Applicant might be interested in him), he may have taken steps to end her employment since the income she generated was not sufficient to justify employing her.
  13. The Respondent said that at the end of each day he and the Applicant had a friendly hug, which he thought was consensual.
  14. The Respondent claimed that he only realised that his feelings for the Applicant were not reciprocated after the emails sent in October 2015. After that time, he said that he did not make any romantic moves towards her again and allowed her to continue her employment with him for another eight months or so.
  15. The Respondent admitted that he had begun a relationship with Mel very soon after the October 2015 emails. He claims that the Applicant went with him to a curry night at the Lions Club in 2016. He said that during that function, the Applicant suggested to the Respondent that they should begin a relationship together.
  16. The Respondent denied that the Applicant had told him at any time before October 2015 that she did not want him to send her emails about personal matters.

Credibility

  1. Having heard both the Applicant and the Respondent give evidence before me, I have no hesitation in accepting the evidence of the Applicant over that of the Respondent.
  2. The Applicant was forthright and honest in her evidence. The Respondent tried to obfuscate matters a number of times and often refused to answer direct questions.
  3. In many aspects, the Respondent’s evidence simply did not make sense. For example, the Respondent admitted that the Applicant sent him an email before the Sydney trip telling him that she wanted a working relationship only. When he went to look at it again, he was unable to find it. The Respondent irrationally concluded that the Applicant must have logged into the company email system and deleted the email that she had sent to him. He reasoned that she did this because she, in fact, did want to have a romantic relationship with him.
  4. There is simply no logic to that conclusion. It is, at best, delusional.
  5. This is why the email of 19 July 2015 (sent at 5:29 PM) is pivotal. The first three paragraphs are an acknowledgement that the Applicant has told him that she does not want a romantic relationship with the Respondent and that the trip to Sydney is for work and for work only.
  6. I cannot accept that the Respondent would have written that email if he truly believed that the Applicant had deliberately deleted an email for the purpose of giving him the impression of wanting a romantic relationship with him.
  7. Further, the Respondent provided two ludicrous and bizarre explanations as to why he entered the Applicant’s room on two occasions during their trip to Sydney. The fact that he continued with what was, quite clearly, a false account under oath points to dishonesty more widely.
  8. The Respondent’s account is also deceitful when he says that he had never been told not to send emails to the Applicant particularly when a number of his emails that begin with words to the effect of, “I know that you say you won’t read this email...’.
  9. The Respondent has also sought to excuse his behaviour because he took the anti-smoking drug “champix”. During his evidence, this became a convenient crutch upon which he would lean when the questioning became tough.
  10. The Respondent’s evidence bordered on ridiculous when he tried to blame the drug for his loss of control resulting in him writing what he wrote in the various emails to the Applicant. His eventual evidence was that the drug caused him to be “not in control” in the mornings before work and again after work, but allowed him to be “in control” during the working hours.
  11. Taking into account the demeanour of the Respondent and the substance of his evidence, I have come to the conclusion that wherever his evidence conflicts with that of the Applicant, I accept the Applicant’s evidence.

Summary of the Facts

  1. The Applicant was a woman with two children who had recently become admitted as a legal practitioner in the State of New South Wales. Because of her family arrangement, she was “anchored” in the northern rivers region and needed to find work.
  2. The Respondent employed her in June 2015. I find that the Respondent was physically and emotionally attracted to the Applicant.
  3. When the Applicant mentioned her “family law” troubles to the Respondent, the Respondent volunteered his services to her because of that attraction. I find that he did so in order learn more about her personal life and be “closer” to her.
  4. Within weeks of commencing her employment, the Applicant had disclosed to the Respondent many aspects of her personal life, including the circumstances of her past relationships. Whilst these disclosures only occurred because of his role as her “legal representative”, in the Respondent’s mind it formed a sense of intimacy and trust in him which fuelled his attraction and blurred his objectively.
  5. Although the Respondent would not have had this information if the relationship were simply that of employer and employee, I find that such knowledge simply accelerated his pursuit and allowed him to persistently encroach into her personal issues long after the “legal representation” finished. This is a very grave exploitation of that relationship.
  6. The Respondent had to travel to Sydney for a court matter and saw this as an opportunity to bring the Applicant with him to see if he could begin a sexual relationship between them.
  7. When the Respondent felt that he had trust of the Applicant (and had her in a position from which she could not easily withdraw), the Respondent told her of his feelings. Notwithstanding the total impropriety of a disclosure of this sort coming from a “legal representative”, he then talked of work matters within the same conversation, as if to “normalise” what he had just disclosed.
  8. Sensing that there could well be ulterior motives for the invitation to go to Sydney, the Applicant requested that her 16-year-old son accompany her. When the Respondent agreed to this, the fears the Applicant had were somewhat allayed. This was especially so when the Respondent agreed to sleeping on the veranda whilst the Applicant slept in the bedroom (with her son on the floor next to his mother).
  9. The Applicant had already made it clear both verbally and in an email that she did not want a personal relationship with the Respondent and regarded the trip to Sydney as entirely work related. That declaration left no doubt as to her intention.
  10. I have already spoken of the risible evidence that the Respondent gave about his inability to find the email again, and his taking this as a sign that the Applicant was toying with him and inviting him to pursue her. In this regard, the Court notes that the email sent by the Respondent on 19 July 2015 is an acknowledgement by him that the Applicant was aware that he has made a sexual advance and she has unequivocally declined the invitation. “Catherine. All cool. I understand, I truly do.”
  11. During the trip to Sydney, the Respondent “tried his luck” by surreptitiously entering the Applicant’s bedroom in his underwear. His objective was to have some form of sexual liaison with the Applicant that night. His excuse that he needed to be inside because he would be “eaten alive” by mosquitoes represents an entirely dishonest attempt by the Respondent to hide his true motivations.
  12. The Respondent then exploited his position as the employer of the Applicant (and the fact that she was staying in the house of his brother) to coerce the Applicant into giving him a hug as some form of consolation for her rejection of him.
  13. Notwithstanding that the Applicant had denied the Respondent what he was seeking the night before, the Respondent tried again the next morning to engage inappropriately with the Applicant – it seems because he now believed that the hug he had coerced the night before was evidence of desire to have a sexual relationship with him.
  14. Despite the protestations of the Respondent, it is clear that his purpose in entering into and remaining in the Applicant’s room that next morning was a hope that he would see her naked (as she was clothed only in a towel) or to watch her get dressed. His excuse, that he thought that he left some papers in her room, again reflects a dishonest attempt to hide his true motivations – motivations that are entirely sexual.
  15. After the trip to Sydney, the Respondent coerced hugs from the Applicant on a number of occasions by blocking her exit and putting her in a position where she felt she could not decline. The power imbalance evident here (between employer and employee, senior and junior and male and female) is mind-boggling.
  16. Despite all of this, the Applicant remained committed to a professional relationship. She tried as best she could to simply get on with her job. Given her personal family situation (one that is familiar to many divorced women with children) and her limited career opportunities (again because of her position as a divorced woman with children), her decision to persevere is entirely reasonable.
  17. The harassment continued. The Respondent bombarded the Applicant with emails. The Applicant asked him to stop. He did not. The Applicant told him that she would not read his emails but he still continued to send them. Almost every email that he sent concluded with the word “love” or symbols of hugs and kisses.
  18. The bombardment of emails continued the Respondent’s pursuit of the Applicant, notwithstanding that she had made it abundantly clear that she was not interested in a sexual relationship.
  19. Also contained in those emails were veiled threats that her employment depended upon her entering into a sexual, or romantic relationship with the Respondent. Examples of these threats include these passages:
and
you will need to do the right thing by me. (12/10/15)
  1. It was obvious to the Respondent that these emails were harassing not just because he had been told they were not wanted, but also due to the sheer number and quick succession in which they arrived. Knowing that the Applicant, financially and socially disempowered, might make a complaint, the Respondent then threatened her that he would fight any such action.
  2. The Respondent finally stopped his attempt to woo the Applicant but only because he entered into a relationship with Melanie Campbell. The Respondent nevertheless still had not completely given up as is illustrated by the evidence that in December 2015, he invited the Applicant to Christmas drinks in Brisbane and suggested ways to tie that in with her parenting time.
  3. The demise of the relationship with Ms Campbell after several months (June 2016) coincided with the Respondent raising the need to reduce the Applicant’s working hours. He used the personal knowledge he had previously gained as her “legal representative” as an excuse to criticise her work and her standing as a professional.
  4. It could easily be construed that the reduction of the Applicant’s work hours may well have been a different ploy to back her into a corner and again agitate for a relationship, however, whether that was actually his intention is irrelevant for the purposes of this litigation.
  5. What is clear is that he again raised personal issues in such emails in a manner that was offensive, humiliating and intimidating.

Sexual harassment

  1. Sexual harassment is defined in s.28A of the Sex Discrimination Act 1984 (Cth) as follows:
  2. The Respondent submits that the behaviour in which he has indulged does not amount to sexual harassment under this definition. I am cognisant of the principles enunciated in Clarke v Nationwide News Pty Ltd [2012] FCA 307 in coming to my determination as to whether the facts of this matter amount to “sexual harassment” as defined by s.28A of the Act.

Did the Respondent make a Sexual Advance to the Applicant?

  1. During his evidence, the Respondent suggested that he was not making sexual advances to the Applicant but rather, attempting to pursue a romantic relationship. The Respondent points to passages such as,
“I’m sorry that it coincided with me expressing to you a need for intimacy” (20/7/15),
“I would love you and we could work things out....I would always put you and your happiness before all else” (4/9/15),
“I also really love you and I think you like me too....please follow your heart and see that we could have a beautiful life not just in work” (15/9/15)
“you inspire me in the hope that you will kiss me........ you would be blessed with the huge passion and love only a Scorpio Ox can give” (2/10/15)
“love can find a way.....I am keeping my heart open for you” (8/10/15),
“I want to be your lover and I am keeping my heart open for you” (12/10/15)
  1. It would seem that the Respondent is attempting to differentiate an advance that is nothing more than sexual in nature against his proposal of a deeper, loving relationship.
  2. The distinction advanced reflects a social myopia on the part of the Respondent that, thankfully, is not reflected in the Act. The Act does not allow for any such distinction.
  3. On the evidence, the relationship to which he wished the Applicant to enter was one that was clearly sexual in nature and, in context, could not have been anything other than deeply distressing for a woman in the situation in which the Applicant found herself. The fact that the Respondent might view his actions as merely “romantic” does not detract from the fact that his actions were, to this Applicant, a daily nightmare that occurred because this Respondent, as a man, was targeting her, sexually, as a woman and as his inferior.
  4. So long as there is any sexual aspect to the Respondent’s advance, he has made a “sexual advance” as that term is understood in s.28A of the Act.
  5. On the facts as I have found them, numerous sexual advances were made. The actions seen here, embedded in sexual inequality, are actions of the sort that the Act seeks to address.

Was the Sexual Advance “unwelcome”?

  1. Whether the advance was “unwelcome” is a subjective assessment. The Applicant has been consistent that the Respondent’s conduct was definitely unwelcome. The Court does not doubt her in this regard.
  2. Also apparent is that the Respondent knew that his behaviour was unwelcome.
  3. The email of 19 July 2015 acknowledges that the Applicant did not want a personal relationship with the Respondent. When the Applicant asked the Respondent to leave her bedroom on the first night in Sydney and then again the next morning, the Respondent could not have been in any doubt that his advances were totally unwelcome - even if he, remarkably, thought they were appropriate.
  4. The email of 4 September 2015 begins with an acknowledgement that “I know you will read this email even though you say you will not”. This can only be a reference to the Applicant telling the Respondent that she did not want him to send emails and she would not read them. The Respondent would clearly know, in this context, that his conduct was unwelcome - and thus inappropriate.
  5. The email of 8 October 2015 begins with the acknowledgement “I know I said I was not going to write to you again”.
  6. Despite this, the Respondent still writes to the Applicant knowing, again, any communication of this sort was unwelcome.
  7. The email of 12 October 2015 at 11:19 PM (and again on 13 October 2015) begins with the words “I have been very careful not to harass you”. This can only be seen as an acknowledgement by the Respondent that this communication, and his prior communications, are unwelcome.
  8. Legally, I only have to be satisfied that the conduct in question was subjectively unwelcome. On the basis of the above, I conclude that, not only were they subjectively unwelcome, they were also objectively unwelcome and that the Respondent knew so.

Offended, Humiliated or Intimidated

  1. The Applicant gave evidence that she was offended, humiliated and intimidated by Respondent’s sexual advances and harassing conduct. She gave evidence that, despite telling the Respondent a number of times that she was not interested in a personal relationship of any sort, he continued to pursue her.
  2. The Applicant said that she was intimidated by the Respondent and felt pressured into hugging him. She also gave evidence that she was intimidated by the Respondent’s suggestion that her being in a relationship with him was tied to her longevity as an employee of the firm.
  3. The Applicant also said that she was humiliated when she realised that the Respondent did not bring her to Sydney because he valued her work or her legal acumen but rather because he saw this as an opportunity to connect sexually with her.
  4. I do not doubt the Applicant. She was an entirely credible witness and, given the situation she found herself in, it would indeed be surprising if she did not feel as she clearly did.

Anticipation, in all the Circumstances

  1. The Court must assess, objectively, whether in all of the circumstances, the Respondent would have anticipated the possibility that the Applicant would be offended humiliated or intimidated by his conduct.
  2. The particular circumstances that the Court has had regard to are:
    1. that the Applicant and the Respondent are in an employer/employee relationship;
    2. that the Respondent had also been engages as the “legal representative” of the Applicant;
    1. that the Applicant was “anchored” to the Northern Rivers region because of her life circumstances and, as such, needed employment in that area;
    1. The Respondent knew that the Applicant suffered from anxiety.
  3. In the circumstances of this case, it can be said, objectively, that the sexual advances of the Respondent would have the effect of offending, humiliating or intimidating this Applicant.
  4. Many of the emails referenced throughout this judgement are quite threatening. They direct hostility at a woman who was socially and individually vulnerable. They intimate that unless the Applicant entered into a relationship with the Respondent, her employment will be jeopardised.
  5. The actions of the Respondent and the response of the Applicant need to be seen in context. As American legal theorist, Professor Catherine McKinnon writes (Feminism Unmodified: Discourses on Life and Law (Harvard University Press, 1987)):
The law against sexual harassment is practical attempt to stop a form of exploitation.... [It] has affected both the context of meaning within which social life is lived in the concrete delivery of rights through the legal system.
  1. Here, seen in context, the sheer number of emails, especially those sent on 12 October 2015, would be simply overwhelming for any woman in these circumstances. The power imbalance evident, and the effect of emails of this sort would have on the already disempowered, is such that it cannot be said here, that even the most naïve of men in a position akin to that of the Respondent, would not have anticipated that this Applicant would be offended, humiliated or intimidated by his conduct.

Conclusion

  1. Rather than look at individual instances, the conduct of the Respondent should be looked at as a whole. To my mind, the sexual harassment began when the Respondent told the Applicant that he had “feelings” for her on the eve of the mediation in which he was her “legal representative”. The last of the sexually harassing emails was sent on 14 October 2015 after which no more sexually harassing emails were sent. The behaviour, between those two dates, which has been described above, constitutes sexual harassment.
  2. The Applicant had particularised the sexual harassment as being comprised of spoken words, physical contact and email communications. Even though I have listed all of the acts relied upon by the Applicant, I have not analysed each and every one of them as to whether they, in and of themselves, constitute “sexual harassment”.
  3. To my mind, such an approach is folly. The significance of each act is only realised when one looks at that act in the context of all the other acts. It may be that one of those acts, in and of itself, may not sufficiently satisfy the definition of “sexual harassment”, but when looked at, as a part of a greater whole, in context with all the other acts, the definition is satisfied.
  4. For all of the reasons given above, I conclude that the conduct of the Respondent toward the Applicant amounts to “sexual harassment” as that term is used, and that conduct addressed, in the Act.

Consequences

  1. Pursuant to s.46PO of the Australian Human Rights Commission Act 1986 (Cth) (“the AHRC Act”), the Court can do a number of things. However, the matter can only come to Court if a complaint has been terminated by the president under s.46PE, s.46PF(1)(b) or s.46PH and the president has given a notice under s.46PH(2).
  2. Pursuant to s.46PH, the president can terminate a complaint on eight different grounds. Under s.46PH(1B)(b), the president must terminate a complaint if satisfied that there is no reasonable prospect of the matter been settled by conciliation. Under s.46PH(2), if the president terminates a complaint, the president must notify the complainant in writing.
  3. The notice of termination in this matter was issued under s.46PH(2) of the AHRC Act. Whilst the notice declares that the complaint was terminated because there was “no reasonable prospect of the matter been settled by conciliation” (which is the wording of s.46PH(2)), it describes the section under which the complaint was terminated as “section 46PH(1)(i)”. No such sub-subsection exists.
  4. Whilst this is a clear error on the face of the document, there has been no point taken by either side that such an error invalidates the notice of termination, which would then in turn, put into question whether these proceedings were validly brought before this Court.
  5. Thankfully, common sense has prevailed and, it would seem, both sides have understood that the error on the face of the notice, given by the president, is simply that - an error.

Damages

  1. Section 46PO(4)(d) of the AHRC Act reads as follows:
  2. As can be seen from the legislation, the issue of causation is very much a live issue in the assessment of damages under the statute. The manner of assessment of damages is governed by the Full Court decision of Richardson v Oracle Corporation Pty Ltd [2014] FCAFC 82.
  3. In this matter, the Applicant contends that she has undergone pain suffering and a loss of enjoyment of life. She said that she has endured hurt, distress and humiliation because of the harassment. She contends that she has suffered a psychiatric injury because of the sexual harassment. This injury has led to deficiencies in a number of areas for the Applicant. This aspect is a significant part of the claim for general damages. The Applicant has also asked for an award for past and future treatment costs dealing with her psychiatric injury.
  4. The Applicant also submits that there are factors that significantly aggravate these general damages.

Mr Kotroni

  1. The Applicant was treated by a psychologist, John Kotroni. He provided a report to the Court and gave evidence. He said that he started treating the Applicant in 2010. At that time he believed she had a mood disorder which then began showing a symptomology of depression which was quite different to a disorder.
  2. He finished treatment in October 2013 and noted that she was quite well at that time. She was referred to him again in October 2015 by her GP, Dr Wylie. Her first appointment was on 20 October 2015 and she had a further 17 consultations over the next 11 months.
  3. Mr Kotroni noted that the GP had diagnosed the Applicant with a generalised anxiety disorder however Mr Kotroni was of the view that such a diagnosis did not address the depressive symptoms that were also present.
  4. Mr Kotroni was of the opinion that the anxiety and depressive symptoms were a direct result of the sexual harassment visited upon the Applicant. Whilst Mr Kotroni has not treated the Applicant since September 2016, at that time the sexual harassment was still affecting her.
  5. Mr Kotroni was questioned as to whether, in effect, the Applicant had a pre-existing condition which was simply exacerbated by the conduct of the Respondent. Mr Kotroni answered that the injury developed by the exposure to the sexual harassment was a different matter with different symptoms to that which the Applicant had experienced previously.
  6. Mr Kotroni conceded that there were other stressors in the life of the Applicant at the time in which he was treating her but that the Respondent was the number one stressor.
  7. The evidence of Mr Kotroni was logical and coherent. He made appropriate concessions but did not waver on his opinion that the injury he observed was as a result of the sexual harassment. I accept this evidence.

Dr Estensen

  1. The Applicant relied upon the evidence of Dr Axel Estensen, a consultant psychiatrist. Dr Estensen produced a report for the Court and also gave evidence. Dr Estensen had not treated the Applicant but had examined her forensically. He had access to all of the material.
  2. Dr Estensen noted that the Applicant described to him mood symptoms, post-traumatic symptoms anxiety symptoms and a disturbance of social function. He noted that her mood was dysphoric and her aspect reactive. He observed no disturbance of the form, stream or possession of thought.
  3. He noted that her thought content included depressive themes with respect to a diminished level of self-esteem and confidence and a more uncertain outlook. He noted that she had some post-traumatic recollections regarding various interactions she had with the Respondent and that her concerns regarding her work performance and the way that others perceive her displayed anxiety.
  4. Dr Estensen diagnosed her with an Axis I diagnosis of adjustment disorder with mixed anxiety and depressed mood (chronic). He said that this condition best describes the mix of depressive, anxious and post-traumatic symptoms that she has. Historically, it is likely that her symptomology had the range, severity and frequency to be consistent with a major depressive episode of moderate severity.
  5. He said that with treatment and finding alternative employment, her symptoms have now ameliorated which makes the diagnosis of adjustment disorder more appropriate.
  6. Dr Estensen said that this adjustment disorder was causally related to the sexual harassment which the Applicant had experienced. He said that whilst there was a past history of being treated for symptoms, there was little evidence that those symptoms were prominent or problematic prior to her employment by the Respondent. The nature of her symptomology was specific and consistent with the various inappropriate and harassing incidents that she described.
  7. Dr Estensen re-opined that the Applicant is still suffering from symptoms of hurt, humiliation and distress as a result of the sexual harassment. He said that these emotions and feelings have had a negative effect on her social and employment pursuits. He said that those feelings were that the predominant reason why she developed the major depressive episode.
  8. But he noted that her symptomology was not simply limited to hurt, humiliation or distress. She also had disturbances of mood, technician and neuro-vegetative function consistent with a depressive illness. He noted that the Applicant also described post-traumatic symptoms relating to specific events that she found distressing and intimidating.
  9. The events which caused such symptoms were characterised by her feeling distressed due to their inappropriateness, the sexual nature of the event and a feeling of powerlessness.
  10. Dr Estensen said that the Applicant would benefit from further psychological counselling. He said that her prognosis is reasonable. He noted that she had found alternative employment and reported a good relationship with her current employer and colleague. He noted that her motivation to work and provide for her children was high and that she had shown significant resilience despite the adversity she had faced.
  11. He noted that the Applicant felt the need to explain why she had continued working for the Respondent despite the treatment that she was experiencing at the hands of the Respondent. Dr Estensen opined that that explanation was understandable and reasonable when the context of her circumstances were considered. He gave evidence that in his opinion she was harassed and feeling stressed going to work but “she needed the job”. He opined that her response to the sexual harassment was the same as what most people would do.
  12. Dr Estensen rejected a number of contentions that were put to him. It was suggested that, because this was her first job in the legal industry, she may have suffered damage to her emotional state of as a result of the stress related to the job. Dr Estensen did not accept that this was so.
  13. It was put to Dr Estensen that the Applicant was taking a drug, Roaccutane, and that this may have affected her psychological state. Dr Estensen answered that this drug was used to treat acne and, in his experience, the drug was not problematic and that he had not heard of any association between ingesting that drug and the symptomology displayed by the Applicant.
  14. It was put to Dr Estensen that the Applicant was suffering from a pre-existing psychiatric condition. Dr Estensen said that there was no real evidence that there was any psychiatric illness prior to the sexual harassment occurring.
  15. Dr Estensen gave his evidence in a confident and forthright manner. He made appropriate concessions but his evidence was logical and quite compelling. I accept his evidence.

Conclusions on Medical Evidence

  1. Having accepted the medical evidence, I find that the Applicant has suffered a psychiatric injury (adjustment disorder with mixed anxiety and depressed mood (chronic)) because of the conduct of the Respondent.
  2. I am satisfied that, as a result of the sexual harassment, the Applicant’s personality profile has been significantly and adversely impacted. This has meant that her social relationships, as well as her general enjoyment of life, have been inhibited.
  3. The medical evidence has corroborated the evidence of the Applicant. The timing of the first visit to Mr Kotroni was days after the final email was sent in October 2015. I accept that the Applicant has required ongoing psychological counselling and treatment and that she will require such counselling in the future.

General damages

  1. Consistent with the principles in Oracle (Supra), I have assessed damages by reference to the statute and not to principles of tort. The main principle to observe here is that the statute speaks of the damages being compensatory “for loss or damage suffered because of the conduct of the Respondent”.
  2. Those principles must also be guided by the objects of the Act, especially the object of eliminating, so far as is possible, discrimination involving sexual harassment in the workplace.
  3. As was recognised in Oracle (Supra), the general standards prevailing in the community regarding the monetary value of the loss and damage of the kind that this Applicant sustained, has changed over time. There is an acceptance and an understanding of the pernicious nature of sexual harassment.
  4. As far as guidance as to the level of general damages is concerned, I am of the view that any authority prior to Oracle is not going to be of assistance. I accept the submission of the Applicant that Oracle recalibrated the assessment of damages in sexual harassment cases.
  5. In that matter, an Applicant in a large company had been sent to the company office in another city to work on a project. One of the members of that project team in the other city, subjected that Applicant to a “humiliating series of slurs, alternating with sexual advances, which built into a more or less constant barrage of sexual harassment”.
  6. In that matter, the Full Court awarded the Applicant the sum of $100,000 for general damages.
  7. However, this does not mean that my approach to the awarding of general damages should be a series of comparisons with the facts of Oracle so as to ascertain a list of circumstances that arrive less serious, the same or more serious than those circumstances found in Oracle. An approach that confines the awarding of general damages to some sort of formulaic mathematical formula is to be deprecated.
  8. The statute demands that the court assess damages “by way of compensation for any loss or damage suffered because of the conduct of the Respondent”. I have described in quite some detail what the conduct of the Respondent entailed.
  9. I have accepted the medical evidence as to the damage suffered by the Applicant because of the conduct of the Respondent. I have accepted the evidence of the Applicant as to her hurt and humiliation suffered because of the conduct of the Respondent. And I have had regard to the objects of the Sex Discrimination Act.
  10. The conduct of the Respondent was relentless. He took advantage of the vulnerability of the Applicant in announcing “his feelings” for her during a time that he was actually acting as her “legal representative”. He had no regard to the position in which the Applicant found herself but proceeded to act according to his own desires as if they were the only things that truly mattered.
  11. Having been told by the Applicant that she wanted to only have a “working relationship” with him, the Respondent attempted to manufacture a situation in Sydney where he could begin a sexual relationship with the Applicant.
  12. He coerced physical contact with her, in the form of hugs, which he knew could never be appropriate in a workplace. This is especially so when he is in the position of employer and she is an employee whom he knows is desperate to keep her job.
  13. His emails speak for themselves but it is the intertwining of the Applicant’s position in the Respondent’s employment and the desire of the Respondent to have a sexual relationship with the Applicant that is particularly sinister. The threats that he made would have been extremely distressing.
  14. Whilst I accept that there was nothing crude, vulgar or lascivious about the harassment, nevertheless it was obviously unwarranted, persistent and threatening. Considering all that the Applicant endured, it is little wonder that she has suffered the psychiatric injury described in the medical evidence.
  15. I note that the Respondent was represented during the hearing. His Counsel asked that I allow written submissions to be filed after all the evidence had concluded. It was the Respondent himself who wrote and filed the written submissions.
  16. In those written submissions, the Respondent has argued that his conduct was, at worst, annoying to the point of being offensive. Therefore, he claimed, it was at the lowest end of seriousness. The Respondent submitted that he had suffered because his name was published in media reports.
  17. He submitted that because he had already suffered, the award should only be nominal.
  18. Those submissions must be rejected. The Respondent has failed to come to grips with what he has done and the impact it has had on the Applicant.
  19. The Respondent is a solicitor who not only should know the law, but should conduct himself in a very high standard befitting of his position in society. The Respondent is supposed to uphold the law. The law prohibits the very behaviour in which the Respondent, a lawyer, indulged.
  20. Notwithstanding that the Respondent considers the behaviour as lacking seriousness, it is my view that the conduct of the Respondent is a very grave example of sexual harassment.
  21. In all the circumstances, I am of the view that an award of $120,000.00 in general damages should be made.
  22. The Applicant gave evidence that she began a new job almost as soon as she finished employment with the Respondent. She is being paid more than she had been earning with the Respondent. She has not made any claim for past or future economic loss.

Aggravated damages

  1. The Applicant has submitted that there should be an award for aggravated damages. There are two aspects to this matter that I would consider significantly aggravate the damages to a point where there should be a separate award for that aggravation.
  2. The first aspect is the threats that the Respondent made to this stop the Applicant from making a complaint. Despite his protestations to the contrary, it is clear that the Respondent knew that his conduct was unlawful to the extent that a complaint about it would be justified.
  3. He wrote, on a number of occasions that he was “very careful not to harass you” and even had, in block letters, in the subject line of his emails “expressing my feelings is not harassment”.
  4. As detailed earlier, the Respondent made a condition of his continuing to train the Applicant that she must “assure me you will not make a complaint or sue me”. And then to tell her “I always fight the good fight btw”, as if to tell her that she would be not only wrong to make a complaint against him but that he would fight.
  5. This factor is quite a separate factor from that which I have considered in the assessment of general damages. It is behaviour that is akin to, but just falls short of, perverting the course of justice.
  6. The second aspect that aggravates these damages, is the manner in which the Respondent has conducted these proceedings. In the rough-and-tumble of litigation, there are occasions where litigants simply tell lies. In my view, the Respondent has told many lies in this litigation. Examples of this are the contentions of the Respondent that the Applicant told him “I expect to be loving towards you by the end of the week” or that the Applicant propositioned the Respondent at the Lions curry night in 2016.
  7. As appalling as that conduct is, it is not conduct that would warrant an aggravation in the damages. But there are other aspects of the way in which the Respondent has conducted himself in these proceedings that would be immensely distressing to the Applicant.
  8. One of the more despicable acts in which the Respondent has indulged, is that he has used information that he gleaned whilst acting as her “legal representative” for the sole purpose of blackening the name of the Applicant in these proceedings.
  9. In his statement/affidavit in these proceedings, the Respondent discloses information about the mediation proceedings. The Respondent claims that the Applicant said certain things in the mediation. The Respondent claims that he discovered later on that what he recalls the Applicant saying, in the mediation, could not be right. At paragraph 75, 76 and 77 of his statement, he then makes the claim that the Applicant has lied.
  10. None of that had any relevance to a defence against the claim of sexual harassment and this would be known to the Respondent notwithstanding his many deficits as a lawyer. The sole purpose of including this material was an attempt to silence or bully the Applicant by defaming her character and blackening her name.
  11. But the Respondent must have known that this information was privileged and, before he could disclose any of it, he would have to do have asked the Applicant to waive that privilege. He did not do this.
  12. In that same statement, the Respondent makes veiled allegations as to the unfitness of the Applicant to be a mother. Again, none of this was relevant to defending a claim of sexual harassment.
  13. The Respondent attempted to put the blame for his behaviour upon the Applicant describing her as flirty and coquettish. In his statement, he has described a number of occasions that the Applicant wore alluring dresses to the office.
  14. In other parts, he describes the perfume that she wore. In other parts he describes that he could see her bra and part of her breasts when looking at the neckline in her dress.
  15. The Respondent described the Applicant as “encouraging” his behaviour because of those things.
  16. Such claims by the Respondent were described by counsel for the Applicant as “slut shaming”. I would not use that term but could only describe those claims as utterly outrageous.
  17. It is the mark of a bygone era where women, by their mere presence, were responsible for the reprehensible behaviour of men. The Sex Discrimination Act was enacted to help eliminate this sort of thinking.
  18. The aspect of attempting to stop a complaint being made, together with the aspect of the way in which the Respondent has conducted these proceedings, leads me to the conclusion that an award for aggravated damages should be made.
  19. In all of the circumstances, I would award a further $50,000 to the Applicant for aggravated damages.
Orders
  1. I find that the Respondent has sexually harassed the Applicant.
  2. I order that the Respondent pay to the Applicant damages in the sum of $170,000 by way of compensation for loss and damage suffered because of the conduct of the Respondent.
  3. Costs follow the event. I have been asked by the parties that they be heard on the question of costs.

I certify that the preceding two hundred and seventy-five (275) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 24 May 2019

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