Discrimination Law - State provisions - Tasmania - Anti-Discrimination Act 1998 (Tas) - Prohibited conduct - Sexual harassment - Activity in connection with accommodation - Quantum of compensation.

Anti-Discrimination Act 1998 (Tas), ss22(1)(d), 89(1)(d).

Alders International Pty Ltd v Anstee (1986) 5 NSWLR 47; Spencer v Dowling [1996] VSC 51; [1997] 2 VR 127; Alexander v Home Office [1988] 2 All ER 118, referred to.

Judgment Number: [2004] TASSC 57

1 This is an appeal from a decision of the Anti-Discrimination Tribunal. It is brought pursuant to the Anti-Discrimination Act 1998 ("the Act"), s100(1). It relates to an incident that occurred very early on the morning of 25 February 2000, not long after midnight. The parties were then living in adjoining apartments. They shared a common balcony that was accessible only from their two apartments. The respondent is, and was at the time of that incident, a transsexual who dressed and appeared as a woman. I will refer to her as "the complainant". On the night in question, she went onto the balcony and knocked on the appellant's door. She wanted to complain about noise from his apartment, or to ask for it to be reduced. The appellant answered his door and swore at the complainant. A short and unpleasant conversation followed. The parties had different versions of what was said. Also, according to the complainant, the appellant poked her in the chest with two fingers several times. The appellant denied doing so. The complainant made a complaint to the Anti-Discrimination Commissioner about the appellant's conduct during that incident. The Commissioner referred the complaint to the Tribunal. The Tribunal conducted a hearing and subsequently delivered a reserved decision in which it accepted the complainant's evidence; rejected the appellant's evidence where it conflicted with that of the complainant; made a finding that the complainant had been undertaking an activity in connection with accommodation within the meaning of the Act, s22(1)(d), at the time of the incident, in that she had knocked on the appellant's door to speak to him about noise that was impacting on the quality of her accommodation; made a finding that the appellant's conduct during the incident was prohibited conduct within the scope of the Act, s17(1); and made an order that the appellant pay the complainant $4,000 as compensation, relying on the Act, s89(1)(d).

2 The appellant was not legally represented at the hearing of this appeal. He relied upon a number of grounds of appeal which raised issues as to natural justice, the factual findings of the Tribunal, the findings of the Tribunal as to liability, and the quantum of compensation. I will deal with his grounds of appeal in that order, rather than the order in the notice of appeal.

"4 The Chairman denied the Applicant Natural Justice via removing his brother and nephew (a solicitor) from the Court for smiling, while allowing supporter [sic] of the Respondent to verbally abuse, harass and intimidate his elderly father while in the witness box.

5 The Chairman denied the Applicant Natural Justice by not dismissing the complaint when the Respondent admitted under oath that the content of her Sworn complaint was untrue. As it is an offence under Section 150 (a) (b), to mislead the Tribunal."

4 Ground 4 relates to a series of incidents that occurred during the hearing before the Tribunal. Neither of the parties was legally represented at that hearing. It was attended by the appellant's brother and nephew, and by a companion of the complainant. The appellant's brother was trying to help the appellant conduct his case. In particular, he was writing notes to the appellant suggesting questions for witnesses, and getting a security officer to pass those notes to the appellant. The Tribunal's chairperson warned the brother at one point about his mirth during the proceedings and, shortly afterwards, directed him to leave the room, commenting that he had totally disregarded her direction. He left. The appellant's nephew took over the role of providing assistance. It appears that he too was compelled by the learned chairperson to leave the room after a display of amusement. Subsequently the complainant's companion behaved in a somewhat similar way, but was not required to leave. Later in the hearing, the appellant complained to the learned chairperson to the effect that she had treated the complainant's companion more favourably than she had treated his relatives. She made a series of observations. She noted that that the complainant's companion was no longer present, emphasised that witnesses should not be hindered or intimidated, and requested that any further instances of the sort of behaviour complained of be drawn immediately to the Tribunal's attention.

5 There are two important aspects to the concept of natural justice. One relates to procedural fairness. The other relates to bias. I think ground 4 might have been intended to refer to both procedural fairness and bias.

6 The Tribunal had a duty to afford the appellant procedural fairness. However that duty did not require the Tribunal to refrain from keeping order during the proceedings, nor to permit the appellant's relatives to remain present however badly they behaved, nor did its duty to the appellant require the Tribunal to handicap the complainant by excluding the person who was endeavouring to provide her with assistance. There was plainly no breach of the duty of procedural fairness.

7 On the hearing of this appeal, the appellant read two affidavits sworn by his brother. It appears that the brother had had previous contact with the learned chairperson in her capacity as a magistrate, and that she had disqualified herself from dealing with matters involving him in the Magistrates Court. The facts leading to her disqualifying herself from hearing his cases are not apparent from the material before me. A member of a tribunal has a duty to disqualify himself or herself if he or she is actually biased against one of the parties, or if a fair-minded lay observer might reasonably apprehend that he or she might not bring an impartial mind to the decision-making process. See, for example, Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1980) 170 CLR 70; Ebner v Official Trustee [2000] HCA 63; (2000) 205 CLR 337. If it was because of the application of these principles that the learned chairperson disqualified herself in relation to the appellant's brother's matters, it does not follow that she was actually biased against the appellant, nor that there was a basis for a reasonable apprehension that she was so biased. I do not think the exclusion of the appellant's relatives when their behaviour was inappropriate, nor the fact that the learned chairperson did not exclude the complainant's companion when he behaved similarly, makes any difference to that situation. From the material before me, I am unable to identify the point during the proceedings when the complainant's companion misbehaved. Anyone presiding at a hearing in legal proceedings who observes misbehaviour has to decide whether the misbehaviour warrants an interruption to the proceedings. That will depend on the nature of the misbehaviour and the importance of whatever is then occurring in the proceedings. Often it would be foolish to interrupt the proceedings to rebuke or exclude a member of the public. Although the learned chairperson excluded supporters of one party but not a supporter of the other party, I do not think that those facts show any indication of bias or possible bias. Ground 4 must fail.

8 Ground 5 appears to relate to a submission made by the appellant to the Tribunal after the complainant had completed her evidence, and before any other witnesses were called. He made a submission to the effect that the complainant was not a credible witness, and that the proceedings should therefore be dismissed at that stage. It would have been entirely inappropriate for the Tribunal to take that course since the complainant had other witnesses to call, and the duty of procedural fairness required the Tribunal to allow her to call them, whatever impressions it had formed as to her credibility. The rejection of the appellant's submission does not give any indication of bias or possible bias. Ground 5 must fail.

9 The appellant referred me to a number of passages in the transcript which, according to his submissions, showed bias or apparent bias on the part of the learned chairperson. Those passages were not within the scope of his grounds of appeal relating to natural justice, and I will therefore not address them in any detail. In my view, taken as a whole, they give no indication of bias or possible bias on the part of the learned chairperson.

"8 The Tribunal via its findings did not view the evidence in an equitable manner. It ignored the evidence of the Applicant and his support witnesses when it conflicted with the Respondent, choosing the Respondents version of events, even when Police and Housing records conflicted with Respondent evidence. And after the Respondent admitted misleading the Tribunal by swearing and lodging a false statement of complaint with the Tribunal."

11 The reference to "Police and Housing records" relates to complaints made prior to the incident on the balcony by the complainant about the appellant to the police and to Housing Tasmania, the landlord of both parties. The reference to a "false statement of complaint" relates to an account given by the complainant concerning the appellant's conduct on an earlier occasion. Before the Tribunal, it was the appellant's case that the complainant was not a credible witness, and that her lack of credibility was demonstrated by the evidence concerning events that occurred prior to the incident on the balcony.

12 The Tribunal's findings of fact depended upon its assessment of the credibility of the witnesses. On the hearing of an appeal of this nature, findings of fact based on credibility can be disturbed only in limited circumstances. The circumstances in which that will be done have been considered in recent years by the High Court in a number of cases, notably Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472, and State Rail Authority (NSW) v Earthline Constructions Pty Ltd [1999] HCA 3; (1999) 73 ALJR 306. As a general rule, appeal courts will exercise restraint in disturbing the findings of fact that have been based upon assessments of the credibility of witnesses. Kirby J recently set out a useful list of situations in which appeal courts have disturbed such findings in Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598 at 1616 (pars98 - 99). His Honour said this:

"In SRA [1999] HCA 3; (1999) 73 ALJR 306 at 331-332 [93]; [1999] HCA 3; 160 ALR 588 at 620-622, I listed a number of cases, illustrated by decisions of this and other courts, in which, despite credibility findings, appellate intervention had occurred and been upheld. As I pointed out in that case, the instances cited were 'by no means exhaustive' [1999] HCA 3; (1999) 73 ALJR 306 at 331 [93]; [1999] HCA 3; 160 ALR 588 at 620. They included cases (1) where the primary judge's conclusion, although expressed in terms of credibility, was 'plainly wrong' as demonstrated by incontrovertible facts or uncontested testimony; eg Voulis [1975] HCA 44; (1975) 180 CLR 177; Gray v Motor Accident Commission (1998) 196 CLR 1 at 36-37 [105], 51-52 [149]; Trawl Industries (1992) 27 NSWLR 326 at 349-350; (2) where the conclusion was based on evidence wrongly admitted, occasioning a substantial miscarriage of the trial cf Paterson v Paterson [1953] HCA 74; (1953) 89 CLR 212 at 224; (3) where the reasons, going beyond credibility, indicated a consideration at trial of irrelevant matters or a failure to weigh all relevant issues Gray (1998) 196 CLR 1 at 37-38 [105], 51-52 [149]; Watt v Thomas [1947] AC 484 at 487 per Viscount Simon; (4) where the circumstances in which evidence was given, relevant to credibility, was unsatisfactory Commonwealth Bank of Australia v Mehta (1991) 23 NSWLR 84 at 92; or (5) where the primary judge had made it plain that credibility considerations or impressions were not determinative for the judgment in question Taylor v Johnson [1983] HCA 5; (1983) 151 CLR 422 at 436-437.

There were two further categories that I mentioned in SRA. They are relevant to the present appeal. They were: (6) where the credibility determination 'leaves untouched other evidence which requires separate evaluation with no obstacle of a credibility finding' SRA [1999] HCA 3; (1999) 73 ALJR 306 at 331 [93.1]; [1999] HCA 3; 160 ALR 588 at 620. See also Gray (1998) 196 CLR 1 at 37-38 [105] and (7) where, notwithstanding the credibility finding, the 'extreme and overwhelming pressure' The Glannibanta (1876) 1 PD 283 at 287; Paterson [1953] HCA 74; (1953) 89 CLR 212 at 219-220 of the rest of the evidence at the trial is such as to render the conclusion expressed at first instance so 'glaringly improbable' Brunskill [1985] HCA 61; (1985) 59 ALJR 842 at 844; [1985] HCA 61; 62 ALR 53 at 57 or 'contrary to compelling inferences' Chambers v Jobling (1986) 7 NSWLR 1 at 10 of the case that it justifies and authorises appellate disturbance of the conclusion reached at trial and the judgment giving it effect."

13 The Tribunal was required to make findings of fact as to what the appellant said and did during a very brief encounter on the balcony. Of the witnesses who gave evidence, only he and the complainant were present at that time. The Tribunal was not bound by the rules of evidence, and allowed evidence to be given as to the appellant's conduct on other occasions. It also received evidence from a doctor that corroborated the complainant's evidence that she had been poked in the chest. The Tribunal believed the complainant's evidence as to the events of the night in question, and rejected the appellant's evidence, to the extent that there was any inconsistency. The appellant made lengthy submissions to me as to this ground, but in substance he was trying to persuade me that his version of events was reliable and that the complainant's version was not. The Tribunal had the advantage of seeing both parties give evidence and undergo cross-examination. I have not had that advantage. I am unable to detect any error in the Tribunal's reasoning that led to its findings of fact. In my view this is not a case that involves any of the situations described in the passage I have quoted from the judgment of Kirby J in Whisprun. This ground must fail.

"6 The Tribunal erred at law in finding that section 22 (1) (d) of the Act applied to the complaint circumstances via its interpretation of why / how the term 'in connection with' applies.

7 The Tribunal erred at law in finding that the Applicant breached section 17 (2) by applying the provisions of section 17 (3) (d) and (e), via its interpretation of 'harass' and 'conduct of a sexual nature', then misapplying what a reasonable person would have assumed in the circumstances.

9 The Tribunal erred and discriminated against the Applicants heterosexuality in finding that the Applicant is not entitled to hold and or voice a personal opinion, in private, whilst on his own property and within the confines of his own home. It misapplied all aspects of the Anti - Discrimination Act as it regards as a fundamental right for consulting [sic] adults to engage in any (legal) activity in the privacy of their home. The Respondent only had to leave the Applicants property for any alleged offensive behaviour to cease. This concept was and still is the cornerstone of gay/lesbian/transsexual privacy."

15 The complainant's version of events, which was accepted by the Tribunal, was summarised by the Tribunal in its decision in the following paragraphs:

"17 The Complainant gave evidence about the central incident in the following terms. At about midnight on the 24th February 2000 the Complainant heard the Respondent and his girlfriend on the shared balcony shouting through her glass door. The Complainant heard the Respondent and his girlfriend make abusive comments along the lines of 'perverts, sickos, cock suckers' and something like 'you have no right to call the Housing Services and the police on me, you of all people' (transcript p16).

18 The Complainant decided that she had to talk to the Respondent. The Complainant went and knocked on the Respondent's door intending to reason with him. The Respondent and his partner came to the door and the Respondent came very close to the Complainant and swore at her. The Respondent said 'I do things here which are more legal than you, you sicko pervert, transvestite, transsexual cock sucker, with your dick cut off' and 'everyone around this fucking place is shit scared of me and so are fucking you.' (transcript p17) The Respondent tried to provoke the Complainant into fisticuffs. The Complainant retreated to her side of the balcony and was followed by the couple. The Respondent also said 'If you only knew what everyone around here thinks of you' and 'you don't know who you're dealing with, I've cut people, I've thrown acid on people, I can kill, I've killed people and you are just too gutless to fight here' (transcript p19). The Complainant gave evidence that as she retreated backwards the Respondent jabbed her on her chest, to the left of her sternum with two fingers several times. The Respondent said 'Don't you ever call the police or Housing Services on me again' (transcript p19). At some stage the Respondent said 'I have a real cunt here, not a sick pervert cock sucker like you' motioning to his partner and the partner of the Respondent said 'Yes, I have a real cunt here, not what you have got, you pervert''. The woman then lifted up her nightie and pointed in the direction of her vagina saying 'Yes, a real cunt' (transcript p20). The Complainant went inside and locked her balcony door."

16 The Tribunal found that the appellant's conduct, as described in the above paragraphs, constituted sexual harassment within the meaning of the Act, s17(3)(d) and (e), and that it therefore constituted prohibited conduct. The relevant provisions in s17 read as follows:

(2) A person must not sexually harass another person.

(3) Sexual harassment takes place if a person -

(d) makes any unwelcome gesture, action or comment of a sexual nature; or

(e) engages in conduct of a sexual nature in relation to another person that is offensive to that 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, intimidated, insulted or ridiculed."

17 In s3, "prohibited conduct" is defined to mean "any conduct referred to in Division 2 of Part 4". That division includes s17. However s17 is not of general application. It applies only in connection with matters listed in s22(1), which reads as follows:

"22 - (1) Subject to the exceptions and exemptions specified in Part 5, this Act applies to discrimination and prohibited conduct, other than inciting hatred, against a person engaged in, or undertaking any, activity in connection with any of the following:

(f) administration of any law of the State and any State program on any ground specified in section 16(e), (f), (fa), (g), (h), (i) or (j);

(g) awards, enterprise agreements and industrial agreements on any ground specified in section 16(e), (f), (fa), (g), (h), (i) or (j)."

It should be noted that prohibited conduct does not necessarily involve discrimination. Conduct in contravention of the Act can constitute prohibited conduct regardless of whether any characteristic of the victim forms the focus of the offender's conduct. In this case, the appellant's conduct would have constituted prohibited conduct regardless of the complainant's transsexuality.

18 The Tribunal found that, at the time of the conduct complained of, the complainant was undertaking an activity in connection with accommodation within the meaning of s22(1)(d), in that she was "engaged in an activity of speaking to the Respondent about his conduct as her neighbour which was impacting and had impacted on the quality of the Complainant's accommodation". The appellant contends that it thereby adopted too wide an interpretation of s22(1).

19 One would expect that a piece of anti-discrimination legislation concerned with accommodation would be intended to prohibit discriminatory behaviour by landlords against tenants or prospective tenants on grounds such as race, sexual orientation, and family responsibilities. No doubt s22(1)(d) achieves that, at least when the victim of discrimination is engaged in an activity in connection with accommodation, such as looking for a residence to rent. But if the Tribunal's interpretation of s22(1) is correct, Pt5 of the Act applies not just to persons in positions of power, but to anyone who has any contact with someone who is engaged in or undertaking an activity that has some degree of connection with one of the matters listed in s22(1). For example, if a tenant is undertaking an activity in connection with accommodation by doing some gardening in the front yard of his or her rented home, and a passer-by makes an unwelcome comment of a sexual nature in circumstances in which a reasonable person would have anticipated that the tenant would be offended, Pt5 would apply if the Tribunal's interpretation is correct. Since s22(1)(c) makes Pt5 applicable in relation to prohibited conduct against a person undertaking any activity in connection with the provision of goods and services, it would seem that it would similarly apply to prohibit similar comments to a customer shopping in a supermarket, or a person buying a drink in a bar. Since s22(1)(a) covers prohibited conduct against a person undertaking an activity in connection with employment, Pt5 would similarly apply in relation to people travelling to and from work.

20 At first glance, it might seem that such a wide interpretation of s22(1) would produce absurd results that Parliament could not have intended. However it is clear that Parliament has limited the scope of Pt5 to certain areas of activity by reference to victims, rather than to offenders. If Pt5 had been intended to apply only to offenders engaged in certain classes of activities, s22(1) could have been worded differently. Because it has been worded by reference to the activities of victims, I think its purpose was the protection of victims, regardless of the role or status of offenders. Having regard to the classes of activity referred to in s22(1), it would seem that it was intended to protect individuals undertaking the basic activities of everyday life, such as employment and education. One might wonder why any restriction on the scope of Pt5 was imposed at all. Why, for example, should it apply to an unwelcome comment of a sexual nature made to someone shopping in a supermarket or buying a drink in a bar, but not when that same person is sunbaking on a beach, or walking to the home of an elderly relative? However Parliament did restrict the scope of Pt5, and it did so by reference to the activities undertaken by victims of discrimination and of prohibited conduct that might have nothing to do with discrimination.

21 The Acts Interpretation Act 1931, s8A(1), requires an interpretation that promotes the purpose or object of the Act to be preferred to one that does not. That provision must be borne in mind when considering what degree of connection is necessary between an activity engaged in or undertaken by a complainant and one of the matters, such as accommodation, listed in s22(1), in order for the provisions of the Act as to discrimination and prohibited conduct to apply. In my view a very wide interpretation of s22(1) would promote the objects and purposes of the Act relating to discrimination and prohibited conduct. In those circumstances, I cannot see any appropriate basis for giving s22(1) a narrower interpretation than that adopted by the Tribunal.

22 The appellant challenged not only the Tribunal's interpretation of s22(1), but also its interpretation of s17(3)(d) and (e). The Tribunal found that the appellant had addressed the complainant as "you sicko pervert, transvestite, transsexual cock sucker, with your dick cut off". In my view it was correct to conclude that he thereby made an unwelcome comment of a sexual nature in such circumstances that a reasonable person, having regard to all the circumstances, would have anticipated that the complainant would be offended, within the meaning of s17(3)(d). The Tribunal found that the appellant jabbed the complainant on her chest with two fingers several times after having made remarks about her transsexuality. In my view it was correct to conclude that he thereby engaged in conduct of a sexual nature in relation to the complainant that was offensive to her in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that she would be offended, within the meaning of s17(3)(e).

23 Ground 9 involves an assertion that the conduct complained of, because it involved the voicing of a personal opinion in a private place, should not be regarded as within the scope of the Act. As I have pointed out, the relevant provisions in the Act are of very general application. They are not confined to events occurring in public places. Prohibited conduct need not involve discrimination or the abuse of a dominant position of some sort. Although the provisions of the Act are very wide, it is left to the presumed good sense of the Anti-Discrimination Commissioner to decide when to reject a complaint, rather than accepting it for investigation, or when an investigated complaint should be dismissed, rather than proceeding to conciliation or to an inquiry: ss64, 71(1). It is quite clear that the Tribunal did not err in concluding that the allegations made by the complainant, which it accepted, amounted to allegations of prohibited conduct. The grounds in relation to liability must fail.

Assessment of compensation - Grounds 1, 2 and 3

24 Ground 3 was abandoned by the appellant. Grounds 1 and 2 read as follows:

"1 The Damages [sic] awarded were manifestly excessive given the Applicants [sic] circumstances, personal history, offence circumstances, and community requirements.

2 The Damages [sic] awarded were manifestly excessive, in that the Respondent did not claim damages, did not provide the Court with any medical evidence of any physiological damage suffered and suffered no physical damage. There was no suggestion of financial loss by the Respondent."

25 The Tribunal awarded compensation to the complainant for injury to her feelings, distress, humiliation, and the injury to her chest. It accepted that she suffered some bruising, and that her chest hurt for some days after the event. There was no evidence that she suffered psychological injury. The Tribunal said the following as to the emotional impact of the appellant's conduct upon the complainant:

"The Complainant gave evidence that the incident was disturbing. She felt very humiliated. The Complainant felt a significant level of distress after the incident and the days and weeks that followed. She felt unsafe after the incident while continuing to live at Windsor Court for a period of approximately 5 months. In terms of the emotional impact on the Complainant over the longer term the Tribunal finds that the incident has caused the Complainant concern and upset but that this has diminished over time and some of the emotional upset which the Complainant has experienced and was experiencing at the time of the Inquiry was attributable to other conduct of the Respondent which is not the subject of these proceedings. It must be understood that in determining an appropriate award for compensation the Tribunal ignores the impact of conduct of the Respondent on other occasions which is not the subject of these proceedings."

26 Under the Act, s89(1), there is a wide variety of orders that the Tribunal may make if it finds that a complaint is substantiated. Amongst other things, it may order compensation under s89(1)(d), or order the payment of a fine under s89(1)(e). The relevant provisions read as follows:

"89 - (1) If the Tribunal finds after an inquiry that a complaint is substantiated, it may make one or more of the following orders:

(d) an order that the respondent must pay to the complainant, within a specified period, an amount the Tribunal thinks appropriate as compensation for any loss or injury suffered by the complainant and caused by the respondent's discrimination or prohibited conduct;

(e) an order that the respondent must pay a specified fine not exceeding 20 penalty units;

27 As the complainant did not suffer any financial loss, the Tribunal was able to award her compensation only for "injury" suffered by her and caused by the appellant's prohibited conduct. The word "injury" is not defined in the Act. In my view that word should not be interpreted as referring only to physical injury and psychiatric harm that would be compensable in tort cases, but should be interpreted widely, so as to include injury to a complainant's feelings. As I have said, the Acts Interpretation Act, s8A(1), requires an interpretation that promotes the purpose or object of the Act to be preferred to one that does not. The provisions of the Act relating to prohibited conduct are very much concerned with injuries to complainants' feelings. Section 17(1), which is concerned with discriminatory conduct, prohibits certain conduct which "offends, humiliates, intimidates, insults or ridicules". Sexual harassment within the meaning of s17(3) will not always result in financial loss, physical injury, or psychiatric harm, but is always likely to result in a victim being offended, humiliated, intimidated, insulted or ridiculed. Other conduct prohibited by the Act includes victimisation (s18); inciting hatred (s19); promoting, expressing or depicting discrimination or prohibited conduct (s20); and causing, inducing or aiding another person to contravene the Act (s21). When one considers what the Act prohibits, both by way of discrimination and prohibited conduct, it is clear that the availability of compensation for injured feelings alone will promote the purposes and objects of the Act, whereas confining the availability of compensation to cases involving the sorts of damage that are compensable in tort cases would not promote the purposes and objects of the Act. Such an interpretation is also consistent with the conclusion reached by Lee J in Alders International Pty Ltd v Anstee (1986) 5 NSWLR 47 at 65 to the effect that the Anti-Discrimination Act 1977 (NSW) created a tortious liability for "conduct the nature of which contemplates injury to personal feelings, and that damages therefor ought to be recoverable".

28 However I do not think the Act, s89(1)(d), empowers the Tribunal to award compensation in the nature of punitive damages or exemplary damages. Exemplary damages, by their very nature, exceed the damages necessary to compensate a plaintiff, and are awarded to punish a defendant, to provide retribution, to act as a deterrent to the defendant and others, and to demonstrate curial disapproval of a defendant's conduct: Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1 at 9 - 10; Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118 at 149; XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd [1985] HCA 12; (1985) 155 CLR 448 at 471; Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44. By providing in s89(1)(e) for offenders to be punished by the imposition of fines, and by using the word "compensation" rather than "damages" in s89(1)(d), I think Parliament made it clear that the Tribunal was not empowered to award any sum in the nature of exemplary damages by way of compensation.

29 However I do not think s89(1)(d) should be interpreted in such a way as to prevent the Tribunal from awarding compensation in the nature of aggravated damages. Aggravated damages are awarded in a tort case to compensate a plaintiff for increased mental suffering resulting from the manner in which a defendant has behaved in committing the tort or thereafter: Uren v John Fairfax & Sons Pty Ltd (supra); Carson v John Fairfax & Sons Ltd (supra).

30 In Spencer v Dowling [1996] VSC 51; [1997] 2 VR 127, Winneke P, with whom Callaway JA agreed, considered the basis upon which damages could be awarded under the Equal Opportunity Act 1984 (Vic). At 144 his Honour said:

"Because it is the Act's intention to provide a sum of damages to 'compensate' the complainant for her loss, it seems clear to me that the damages have to be compensatory, as distinct from punitive, in nature."

His Honour went on to consider the availability of aggravated damages, and said the following at 144 - 145:

"Because, however, an award of compensation made under the Act will often comprehend an award for hurt, humiliation and injured feelings caused by the discriminatory conduct of the respondent, there is little doubt that, contained within the board's power, is a capacity to aggravate such compensation where the conduct, in committing the discriminatory act, has been highhanded, malicious or oppressive ... and has been calculated to increase the hurt suffered by the complainant. However, before such an award of aggravated damages could be made, it would need to be demonstrated by a complainant that the respondent's conduct had been attended by such aggravating factors."

His Honour went on to conclude that there was no basis for an award of aggravated damages in that case.

31 In Alexander v Home Office [1988] 2 All ER 118, the English Court of Appeal had to consider an award of damages for injury to an appellant's feelings resulting from unlawful racial discrimination. At 122 May LJ, with whom Ewbank J agreed, said the following:

"As with any other awards of damages, the objective of an award for unlawful racial discrimination is restitution. Where the discrimination has caused actual pecuniary loss, such as the refusal of a job, then the damages referable to this can be readily calculated. For the injury to feelings, however, for the humiliation, for the insult, it is impossible to say what is restitution and the answer must depend on the experience and good sense of the judge and his assessors. Awards should not be minimal, because this would tend to trivialise or diminish respect for the public policy to which the 1976 Act gives effect. On the other hand, just because it is impossible to assess the monetary value of injured feelings, awards should be restrained. To award sums which are generally felt to be excessive does almost as much harm to the policy and the results which it seeks to achieve as do nominal awards. Further injury to feelings, which is likely to be of a relatively short duration, is less serious than physical injury to the body or the mind which may persist for months, and in many cases for life.

Nevertheless damages for this relatively new tort of unlawful racial discrimination are at large, that is to say that they are not limited to the pecuniary loss that can be specifically proved. Further, even where exemplary or punitive damages are not sought, nevertheless compensatory damages may and in some instances should include an element of aggravated damages where, for example, the defendant may have behaved in a high-handed, malicious, insulting or oppressive manner in committing the act of discrimination."

The court allowed the appeal and awarded the appellant, a prisoner, £500 damages in respect of unlawful discrimination which resulted in him not being allowed to work in the prison kitchen because of his colour.

32 In this case the Tribunal did not consider whether the complainant should receive compensation in the nature of aggravated damages. This was a case involving two tenants occupying adjoining apartments, rather than a case involving an unequal relationship, such as that of landlord and tenant or that of employer and employee. However I think it is a case in which compensation in the nature of aggravated damages is appropriate. The complainant was entitled to compensation because of the appellant's unwelcome comments of a sexual nature, and because he engaged in offensive conduct of a sexual nature by jabbing her in the chest. However he went further than that during the brief incident on the balcony by uttering words implying that he might cause the complainant serious physical harm, and by telling her not to call the police or the landlord in relation to him again. His conduct in sexually harassing the complainant was thus aggravated by comments calculated to make her fear that he would cause her serious physical harm. In those circumstances, I think she was entitled to greater compensation than would have been appropriate if the appellant's conduct had not gone beyond sexual harassment.

33 If it had been my duty to assess compensation at first instance in relation to this matter, I would not have awarded as much as $4,000. However, having regard to the conduct of the appellant, the aggravating circumstance that I have referred to, the need to maintain respect for the public policy to which the Act gives effect, and the consequences of the appellant's conduct for the complainant, I am not persuaded that the award of $4,000 was manifestly excessive.