For the Respondents: Mr A Middleton of counsel instructed by Norris

1. In 2004, Ms A'Vard enrolled as a student in a Business Commerce course at the Warrnambool Campus of Deakin University. She was a mature age student. At the time she was Ms Annett.
2. Ms A'Vard alleges that she was sexually harassed in September 2004, during the second semester, by one of her lecturers, Mr Ratcliffe.
3. She lodged a complaint in the Equal Opportunity and Human Rights Commission on 20 September 2010. The complaint did not resolve there and at Ms A'Vard's request was referred to VCAT.

1. The hearing was held in two parts. On 15 April 2011 Ms A'Vard, gave her evidence and was cross-examined. She had prepared extensive material. The respondents then wished to prepare their material in response as the directions of the Tribunal permitted. The hearing resumed on 6 June 2011, concluding on 7 June 2011.
2. The following witnesses for the respondents, prepared statements and gave evidence - Mr Ratcliffe, Ms Barbara Piesse, Deputy Chair of the University's Business and Law Faculty Academic Progress and Discipline Committee and Mr Trevor Roberts who was a Student Administration Team Leader at the relevant time.
3. Dr Scott Salzman, lecturer in the Faculty of Business and Law, and Dr Rodney Carr, who was associate Dean (Teaching and Learning) for the Faculty of Business and Law at the time, had also prepared statements for the respondents. Their statements were tendered in evidence.
4. During the hearing, Ms A'Vard also sought to pursue a claim of victimisation related, as I understand it, to the provision of tutors whom she found unsatisfactory. I explained that "victimisation" had a particular meaning under the Act and because that was not a matter referred to the Tribunal, I had no jurisdiction to consider it.

1. In summary, Ms A'Vard's complaint is this. She approached Mr Ratcliffe, her lecturer and tutor in Fundamentals and Finance for assistance with the subject. She says she went into his office and sat down. She says she asked him about his business experience to which he replied he had been in business as a stockbroker and that he was a cowboy and missed being a cowboy but that when one got married and has family, one has to consider the family. She says that shortly after that they started on calculations and without any explanation, he got up from his chair, walked behind her and shut the door. She says he proceeded to sit down and on sitting down, she looked at him and "his penis was erect and he then flicked it twice with his fingers, while looking at me". She clarified that she observed this through his clothing. She says she was taken aback; proceeded to pack up her books and left the office.
2. Ms A'Vard says that within a few days of the incident, she reported all this verbally to a student counsellor, Trevor Roberts, on 21 September 2004.
3. The next time she raised the matter was most likely on or about 16 May 2005. What is clear is that by 23 May 2005 at another meeting with Ms Piesse, Professor Carr and Mr Roberts the complaint was clearly made.
4. On 7 August 2005, Ms A'Vard lodged a formal complaint with the University. On 15 September 2005, Ms A'Vard was advised by the Manager, Staff Equity and Diversity, that after interviewing Mr Ratcliffe and noting his denials that at no time did he have an erect penis, nor flick it, that no further action would be taken on her claim.
5. The next time that Ms A'Vard referred to these matters was in a letter she prepared on 21 December 2005 in response to a request from the University to show cause why she should not be excluded from course M300.

1. Her academic progress at Deakin had been poor. On 31 January 2006 after consideration of her case she was permitted to continue her enrolment subject to the following restriction :
   • In your next semester of study you must enrol in and pass at least three credit points
   • Your academic progress will again be reviewed at the end of your next active semester.
2. Her academic progress continued to be poor. In three years, with 22 attempts, including subjects repeated, discontinued or failed, she passed only five subjects.
3. In August 2006, she was advised her enrolment had been cancelled because of unsatisfactory progress.
4. Apart from her academic progress, following repeated warnings, including at a meeting on 16 May 2005 with Professor Carr and Ms Piesse, about her inappropriate personal approaches to a staff member and continued transgression of directions to cease and desist from any and all correspondence with that staff member, she was excluded from the Warrnambool campus from 10 September 2005 until 31 December 2006. Thus she was excluded from the Warrnambool campus from 10 September 2005 for misconduct and then excluded from the University in 2006 on academic grounds.
5. Ms A'Vard applied for readmission in 2009. On 5 May 2009, the University wrote to Ms A'Vard about her application for reinstatement as a student. It advised her that her application had been unsuccessful because the likelihood of success, in the event she was readmitted, would be very low.
6. She commenced proceedings in the Supreme Court about these matters, but discontinued them and instead lodged a complaint with the Equal Opportunity and Human Rights Commission on 10 September 2010.
7. The complaint referred is one of sexual harassment. The relief she seeks in summary is readmission, full financial funding for this at the University's cost, the provision of her own office (subject to her approval) on campus, damages of $50,000.00 and loss of earnings associated with business opportunities lost over a two year period of $220,000.00 per year for two years and the use of a small vehicle and an unlimited fuel card for two years.

1. To succeed in her complaint, Ms A'Vard must satisfy me that the events that she describes occurred in the way she says and that such conduct, if proven, constitutes "sexual harassment" as defined in s 85, which states -

(1) For the purpose of this Act, a person sexually harasses another person if he or she -

(a) makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person; or

(b) engages in any other unwelcome conduct of a sexual nature in relation to the other person -

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.

(2) In subsection (1) conduct of a sexual nature includes -

(a) subjecting a person to any act of physical intimacy;

(b) making, orally or in writing, any remark or statement with sexual connotations to a person or about a person in his or her presence;

(c) making any gesture, action or comment of a sexual nature in a person's presence

1. Unwelcome conduct by itself is not enough. It must have occurred in circumstances in which a reasonable person, having regard to all circumstances, would have anticipated that the other person would be offended, humiliated or intimidated. Thus, the fact that someone may have been offended or intimidated does not mean in itself that sexual harassment is established.

1. This is a case where there was no one else but Ms A'Vard and Mr Ratcliffe present when she says the harassment occurred. It comes down to whose evidence I prefer.
2. Ms A'Vard is a mature woman. She has reported concerns about other tutors and lecturers. On 31 August 2004, she made complaints to Mr Roberts and Ms Piesse about the teaching style of another lecturer. This was barely a month before she went to Mr Roberts complaining about Mr Ratcliffe. At the meeting on 23 May 2005, she is reported to have complained not only about Mr Ratcliffe but also raised concerns about another lecturer and that lecturer's inadequacy.
3. Ms A'Vard was cross-examined about what happened when she went to his office. She was clearly concerned that he got up from his chair and closed the door without saying anything. She felt this was an unsafe environment. Mr Ratcliffe said that Ms A'Vard had asked to come to see him to sort things out and to get help with the subject just after having performed very poorly in a test. He recalls that when she came to his office he closed the door. He says he did so because it was easier to hear and because he was concerned that other students in the hall might overhear the discussions and she might be embarrassed as a mature age student having received such low marks in the test. He did not agree that closing the door created an unsafe environment. I accepted his evidence. I am satisfied there was nothing sinister about closing the door.
4. Ms A'Vard recounts that Mr Ratcliffe talked about being a cowboy. She says it arose in response to questions from her about his business experience. Ms A'Vard interpreted his reference to cowboys in a sexual way. During the hearing, she described a cowboy as someone who rode women.
5. Mr Ratcliffe's recollection is different. He says when asked about what he did prior to teaching at university, he said he had been a foreign exchange trader but that the industry was full of cowboys and that he had left for family reasons. He says he certainly did not say he was a cowboy. In any event, he understood a cowboy to be someone who "partied a lot, was young, carefree and happy go lucky". I accepted his evidence because, in the context, it is more plausible. He was describing what he used to do and why he left, not what he was now.
6. I am unaware that the word "cowboy" has the meaning attributed to it by Ms A'Vard. Therefore I believe Mr Ratcliffe used the term in the way he described.
7. Thirdly, Ms A'Vard alleges that when he sat down his penis was erect and he flicked it twice. She alleges this was directed at her. Mr Ratcliffe strongly denied this, both in his statement and his evidence.
8. I do not accept Ms A'Vard's recollections are correct for a number of reasons. As I said before, she was not one who was afraid to make a complaint. It is surprising then this conduct was not reported to Mr Roberts at the time.
9. Mr Roberts' contemporary notes of his meeting with her on 21 September 2004, say -

She mentioned to me that she had concerns with one of her lecturers, Chris Ratcliffe. She said she felt that Chris's body language when she was in his room was sexually threatening and also he had closed the door to his room (open just a few centimetres). Kaye thought that sooner or later some formal complaint would arise from the way Chris interacts with female students.

Kaye and I discussed possible ways to deal with this situation. Kaye agreed that I could talk to Chris and give him some general feedback about how he may be perceived by female students with regard to primarily, his body language as long as I did not mention Kaye's name. Also to advise Chris that it may be of benefit to keep his door open when female students are present in his office.

1. He gave evidence that nothing was said to him about an erect penis. His recollection is consistent with what he told Ms Piesse at the time which was that Ms A'Vard had made a complaint about Mr Ratcliffe's "body language".
2. When these notes were put to Ms A'Vard in cross-examination, she agreed there was no mention of it and that she did not mention it. When asked why not, she responded it was because it was sexually offensive and she believed it was sufficient to say "it was sexually offensive" to convey what actually happened.
3. Her explanation simply did not ring true. A careful perusal of the contemporaneous notes refers to her feeling that his body language was sexually threatening. There is no reference to it being sexually offensive.
4. It is not until about 16 May 2005 that Ms A'Vard first alleged he had an erect penis which he flicked.
5. At this time Ms A'Vard was meeting with Ms Piesse and Professor Carr to discuss issues following complaints against Ms A'Vard made by Mr Salzman, as he then was, and breaches by Ms A'Vard of directions to cease all non-essential and non-academically related contact with him.
6. Given that this detailed elaboration arose for the first time during a meeting about her conduct with respect to Mr Salzman, her recollection might well be coloured in the circumstances. In all these circumstances, I am not satisfied the incident occurred as she describes.
7. Whilst Ms A'Vard may have her own mistaken interpretations about the significance of the door being closed and the meaning of "cowboy", even if she regards this as offensive or intimidating, I am not satisfied that in all the circumstances a reasonable person would have regarded it so.

1. In these circumstances, Ms A'Vard has not proven her complaint of sexual harassment. I therefore dismiss her complaint.