the significant features of mental state examination observed were that Amanda generally appeared anxious, sad and tearful.

1. Dr Maxwell continued to prescribe antidepressant Fluoxetine and the Applicant continued to attend Dr Hill. Dr Maxwell considered that the Applicant's 'current mental state will remain largely unchanged until there is resolution of the situation with Mr Smith.'

1. The Applicant first attended Dr Hill in April 2013 for psychological counselling upon referral by Dr Twycross, a colleague of Dr Maxwell.[123]
2. As at 23 July 2014, the Applicant had attended for 30 sessions with future appointments arranged. Therapy sessions incorporated trauma based treatment strategies and cognitive behavioural therapy.
3. Dr Hill initially took a history similar to that recorded by Dr Maxwell. Dr Hill diagnosed a Major Depressive Disorder and Anxiety Disorder and noted a worsening of symptoms over time. In her second report, Dr Hill diagnosed 'Post Traumatic Stress Disorder most likely related to the alleged harassment'. Dr Hill reported that:

Ms Collins is an active participant in therapy and strives to maintain moderate activity levels, to reduce her physiological arousal with relaxation techniques and to consciously contain her thinking about current stressors. Ms Collins' psychological functioning can however fluctuate in accordance with her involvement in the Worksafe investigation and litigation process. It seems likely that Ms Collins' condition will improve with the settlement of legal proceedings and her gaining meaningful employment in the future.[124]

1. Ms Knox, Psychologist, was asked to assess the Applicant's psychological and emotional functioning for the purpose of this proceeding. Dr Knox prepared a report dated 5 October 2013[125] and also gave oral evidence at the hearing.
2. Ms Knox conducted a number of tests. Her findings were that the Applicant has moderate depression (Beck Depression Inventory); 30/50 for anxiety and depressive symptoms (Kessler Psychological Distress Scale); and is symptomatic of Post-Traumatic Stress Disorder (Post Traumatic Checklist & Clinician Administered PTSD Scale). At the time of her assessment Ms Knox recommended:[126]

Given Mrs Collins current difficulties, her level of distress and emotional instability and the severity of symptoms and impact on occupational and social functioning it would not be in her best interest to return to work but rather to attend ongoing weekly counselling sessions with her psychologist with whom she finds helpful and supportive.

Professor Lorraine Dennerstein AO, Psychiatrist

1. Professor Dennerstein performed a forensic psychiatric assessment of the Applicant and prepared an expert report at the request of the Applicant's solicitors[127] and also gave oral evidence. Professor Dennerstein had been provided with previous reports of Dr Von Ammers, Ms Knox and Dr Maxwell.
2. The Professor's report outlines the Applicant's personal development including: family, education, relationship and occupational history, social and sporting interests, past medical and psychiatric history. Prior to January 2013, she had no problems with mental health and there was no other relevant medical or social history.
3. The report also provides a description of the harassment as recounted by the Applicant to her and the impact the harassment has had on her. She diagnosed the Applicant with Chronic Post Traumatic Stress Disorder and Major Depressive Disorder in partial remission with treatment; and considered that her current treatment regime of psychological counselling and antidepressant medication is reasonable and appropriate:

The disorders are related in timing and content to the repeated sexual harassment she described occurring in her employment... And subsequent loss of her job... Her capacity to work at the moment is very limited because of her continuing psychiatric symptoms. Her condition is still severe and unstable and she should not return to work until better control of her symptoms is achieved.[128]

1. Under cross-examination, Professor Dennerstein was provided with a copy of a medical report prepared by Consultant Psychiatrist Dr Wendy Triggs, prepared for the purposes of assessing the Applicant's workers' compensation claim.
2. Dr Triggs conducted her assessment of Ms Collins on 30 October 2013. Dr Triggs gives the opinion that the Applicant's mood would improve if she were to return to work and notes that initially it would be best for the Applicant to have a female boss.
3. Professor Dennerstein confirmed she had not read the report of Dr Triggs. If she had been provided the report, she would have read it, but would still have made her own independent assessment of the Applicant.
4. Respondent's Counsel sought to tender the report of Dr Triggs through Professor Dennerstein with the intention of inviting the Tribunal to draw an inference as to why this report was not provided to Professor Dennerstein. I refused the tender and advised that there was no basis for drawing such inference.
5. I also note that although Professor Dennerstein was not provided the report of Dr Triggs, the Applicant informed Professor Dennerstein of the existence of the report and the conclusion.[129] Professor Dennerstein's report states:

She said Workcover payments were denied because of the report of psychiatrist, Dr Wendy Triggs, in October 2013 who said that she could go back to work in another post office despite having had letters from Amanda's psychologist and doctor contrary to this.

1. In accordance with the Tribunal's Initial Reasons, the assessment of damages now proceeds on the basis that the Tribunal is satisfied that the Applicant has given a history to the reporting experts consistent with her account of alleged sexual harassment. Furthermore, the Tribunal is satisfied that the opinions of her treating health practitioners and medico-legal experts are consistent with a nexus between the alleged sexual harassment and consequent psychological trauma.[130]

1. Mr Collins' statement refers to the day on which the Applicant told him 'I think David just came on to me'. He described the Applicant as being serious, surprised and shocked.
2. Between January and March 2013, Mr Collins noticed that the Applicant was not herself. She had lost weight and became moody. She told him that the work situation with Mr Smith 'keeps repeating itself'. She was reluctant to talk about it, rather she would brush him off and indicate the situation was under control.
3. Mr Collins said that the Applicant's mental state has deteriorated rapidly. She is withdrawn and rarely wishes to socialise. She appears traumatised. There is a lack of affection in their relationship. He wishes things would return to how they were before January 2013.
4. In his witness statement and confirmed in oral evidence, Mr Collins said that the Applicant remained withdrawn and depressed and that there remained a lack of physical affection in their relationship, which in turn has impacted on the Applicant's ability to conceive a child:

Mandy flinches away from me when I touch her and she will only show affection when initiated by her. Our plans to try and have children are off the table now as she cannot handle intimacy and appears to find it deeply traumatic. I find it very difficult to see my wife the way she is now.[131]

1. In her affidavit of 17 August 2015, the Applicant updates her current status as follows:[132]

I have been struggling with anxiety and depression recently and suffering from aggravated nightmares. My ability to sleep has decreased again, particularly due to the nature of my nightmares and panic attacks. My intimacy with my husband has not yet returned and I feel terrible about that, but he continues to be extremely supportive.

Given my relocation, I feel safer knowing that I'm not in the same place as the Respondent. The counselling that I am receiving is assisting me and I am continuing to paint my artwork and I have been attempting to provide some massage depending on how I am feeling.

I would like to achieve a full recovery and I am working towards this. I am trying to be positive but I just want the nightmares to stop and I hate that I have to rely on medication to not feel so low.

1. In finding the incidents of sexual harassment proven, as detailed in the Initial Reasons, the Tribunal was satisfied that in the circumstances faced by the Applicant:
   • (a) A reasonable person would have anticipated that she would be offended, humiliated, insulted and intimidated by the incidents of proven sexual harassment by the Respondent; and
   • (b) She did not at any time welcome or condone the Respondent's sexual advances or requests for sexual intercourse with her. Indeed, she did many things to dissuade him from such conduct.
2. I am further satisfied that there is compelling evidence of the following:
   • (a) The Applicant has suffered severely as a result of the Respondent's sexual harassment, having been diagnosed with chronic post-traumatic stress disorder, major depressive disorder and anxiety disorder;
   • (b) The Applicant's personality profile has been significantly adversely impacted to the effect that her social relationships are inhibited and her marital relationship has come under severe stress;
   • (c) The expert evidence as detailed above is strong and consistent with the account given by the Applicant;
   • (d) The Applicant has endeavoured to address the adverse psychological impact upon her by immediately seeking medical assistance and ongoing psychotherapy. She has been a cooperative patient who has taken advice and endeavoured to maintain a constructive outlook;
   • (e) The Applicant has also endeavoured to mitigate her economic loss by retraining in therapeutic and remedial massage, which she can undertake in her own business; and by pursuing her artwork, which although not significantly remunerative, has provided an important therapeutic benefit;
   • (f) The Applicant has reasonably required ongoing psychological counselling and treatment for depression, which is likely to continue for some time;
   • (g) Save to the extent otherwise disclosed, the Applicant has been to date and remains incapacitated for work by reason of the severe adverse psychological impact and associated physical distress, as a consequence of the sexual harassment; and
   • (h) The loss of intimacy in her marital relationship is consistent with her ongoing psychological trauma and has been the source of significant distress and guilt within that relationship.
3. Having regard to the objects set out in the EOA, it is incumbent upon the Tribunal to have particular regard to the need to eliminate sexual harassment, to the greatest possible extent, in the workplace; and to encourage the identification and elimination of sexual harassment.
4. In my view, the circumstances of the Applicant reflect a particularly vulnerable employee. Her trust and confidence in the Respondent and their pre-existing positive working relationship, was shattered by the Respondent's initial sexual advance and propositioning. Although shocked, embarrassed and humiliated, her response to the Respondent was measured and designed to facilitate a prompt return to a professional working relationship. The harassment could have ended at this early stage and the Applicant may have been satisfied with a simple apology. In my view, the Applicant took all reasonable steps available to her to make her position known and dissuade the Respondent from further harassment. In the circumstances, although the Applicant ostensibly voluntarily resigned, she clearly did so in circumstances where she was effectively forced out by the Respondent's behaviour. There is no question that she loved her job, was good at it and would have chosen to remain in her position, but for the harassment.
5. In reaching an appropriate quantification of general damages in this case, I have had particular regard to:
   • (a) Awards of general damages for sexual harassment in workplace settings;
   • (b) Relevant objectives under the EOA, as outlined above; and
   • (c) The clarification of approach to compensation generally, in discrimination cases, as articulated in the Richardson case, which emphasises the importance of having regard to the general standards prevailing in the community for loss of enjoyment of life, and the experience of pain and suffering.
6. For the reasons given, I regard the incidents, many individually and particularly in aggregate, to constitute a grave example of sexual harassment which warrants an award of compensation in excess of that considered appropriate in the cases of Tan, GLS, Richardson and Irwin; and something approaching the awards made in the cases of Willet and Swan.
7. In all of the circumstances, the appropriate figure for general damages is $180,000. This amount does not include a component for aggravated damages, addressed below, which I also consider appropriate in this case.

1. Section 125 of the EOA provides that the Tribunal may order a respondent to pay compensatory damages, being 'an amount the Tribunal thinks fit to compensate the applicant for loss, damage or injury suffered in consequence of the contravention'. The section does not spell out how damages may be measured. For this purpose, it is noted that aggravated damages are not punitive damages; they are but a part of compensatory damages. At common law, they are 'awarded for injury to the plaintiff's feelings caused by insult, humiliation and the like'[133] In my view, there is no question that aggravated damages may be a component of the compensation awarded under the EOA, having regard to the conduct of the contravening party.[134]
2. In Spencer v Dowling[135] Winneke P observed as follows, in the context of the earlier Equal Opportunity Act 1984:

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 ... Because aggravated damages have emerged over the years as an aspect of the measure of compensatory damages for some torts, it has been held in certain jurisdictions that, by analogy, it is appropriate to award such damages, where the circumstances demand it, in claims made under the equal opportunity legislation.

Because the analogy to such torts has been drawn it has been suggested that, in an appropriate case, an award of compensatory damages can be swollen by an amount of aggravated damages where the conduct of the respondent has added to the hurt or humiliation on account of its malice or high handed nature: see Hall v Sheiban, at 239; De Simone v Bevacqua, at 269; Alexander v Home Office [1988] 1 WLR 968 at 875-6 per May L.J.

Because, however, an award of compensation 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 high handed, malicious or oppressive (see Alexander v Home Office, at 975), and has been calculated to increase the hurt suffered by the Complainant.

1. I accept the submission of Applicant's Counsel that the following circumstances significantly aggravated the Respondent's offending conduct:
   • (a) The Respondent was not only the employer but in a position to exercise and did exercise direct supervision of the Applicant;
   • (b) The Respondent was the person to whom any complaint of sexual harassment would ordinarily be made. Hence, the Respondent's behaviour created an intolerable situation for the Applicant in which to perform her work, where she had no independent party to whom she could complain;
   • (c) The prolonged period over which the wrongful conduct continued;
   • (d) The wrongful conduct occurred mostly within a confined office environment;
   • (e) Ignoring the Applicant's requests to maintain a professional working relationship, the Respondent embarked upon a relentless course of sexual harassment,[136] principally at the workplace but including attempts to meet outside the workplace, blatantly disregarding the Applicant's happy marital relationship and otherwise act in defiance of the Applicant's requests and increasing distress;
   • (f) The impact of the Respondent's behaviour during employment was such as to create fear in the Applicant and continuing apprehension following termination of her employment as to likely unwelcome contact;[137] and
   • (g) In the face of objective written communications of a compromising nature, consistent with the Applicant's account of events, the Respondent persisted in his denials or lack of recall, while purporting to paint the Applicant as provocative and flirtatious.
2. In regard to the Applicant's fear of being confronted by the Respondent and her decision to relocate her home in order to reduce the risk of contact, I acknowledge that there is no evidence that the Respondent did, or attempted to, stalk the Applicant outside of the workplace or pose any physical threat to her.
3. In my view, the above circumstances are also rendered more aggravating by reason of the previous amicable and professional working relationship between the parties. The Applicant gave credible evidence, which I accept, to the effect that she endeavoured to manage an unwanted situation in a manner which would not upset or offend the Respondent. She confided in her husband that she wanted to handle the matter herself. I also accept that she felt trapped and powerless to prevent the Respondent's behaviour, particularly where she felt a financial dependency upon her employment.
4. In the circumstances, I consider that an amount of $20,000 is appropriate compensation to award for the additional aggravating factors.

1. In the Tribunal's view, the principles relevant to the calculation of pecuniary loss, which falls under the general heading of special damages, is uncontroversial. The Commission in its submission provided the following succinct summary:[138]

Special damages, are calculated by reference to the economic loss suffered by an applicant as a consequence of the unlawful conduct. In the employment context, special damages usually focuses on lost wages (both past and future), as well as other employment benefits the employee would have been entitled to such as a redundancy payment, expected pay rises, loss of superannuation payments, overtime payments or allowances.

Special damages can also cover other non-employment related financial loss, including past and future medical expenses (cost of appointments and medication), travel expenses or other expenses for attending the hearing.[139]

An amount of economic loss may be set off against other income or benefits that an applicant may have received in the relevant period.[140]

1. Each of the above components of pecuniary loss are addressed in the Applicant's affidavit of 17 August 2015.
2. Brief mention will be made to two relevant cases which are instructive as to the tailored approach which must be adopted in each case for quantifying damages for past and future economic loss.
3. In Trolan v WD Gelle Insurance and Finance Brokers Pty Ltd,[141] Ms Trolan brought a claim for damages for injury against her employer who breached his duty of care by subjecting her to bullying, intimidation and sexual harassment. The plaintiff worked in the defendant's employ from August 2008 until December 2008. The plaintiff was assessed by Dr Moore, Consultant Psychiatrist who was of the view that:

... the plaintiff had developed an adjustment disorder with predominant anxiety and depression as a result of the serial harassment of a sexual nature in the workplace, which had resulted in her being unfit for work. Whilst Dr Moore considered the condition was temporary, she also noted the plaintiff had not yet reached a state of maximum medical improvement.[142]

1. When reassessed by Dr Moore in 2010, at the request of the worker's compensation insurer, Dr Moore concluded that the plaintiff had:

...a diagnosis of chronic adjustment disorder with depression and anxiety ... symptoms still due to the psychological condition directly related to her reported sexual harassment.[143]

1. The Court assessed Ms Trolan's losses in terms of past economic loss; loss of future economic loss and future loss of superannuation and fixed a sum of $733,723. In assessing the future loss, the Court was faced with a particularly complex calculation, which took account of an allowance for the plaintiff's likely improved residual earning capacity as well as the plaintiff's disabilities.
2. Similarly in Cosma v Qantas Airways Ltd,[144] Heerey J calculated the loss of wages from the date of dismissal from employment until the hearing date; and future loss of wages from the hearing date until a notional retirement date. Past loss of wages was calculated by making an assessment of projected gross earnings, if he had continued to be employed by the respondent from the date of dismissal until the date of trial, deducting any income actually received. In relation to future loss of earnings, Heerey J used the Australian Life tables to identify the value of an adult male's gross weekly earnings until the date of notional retirement.
3. Taking account of the approaches taken the cases of Trolan and Cosma, in the context of the current case, I am satisfied that the methodology employed in the report of Cumpston Sarjeant, which was not otherwise challenged, provides a useful guideline for the Tribunal to assess past and future loss of earnings.

Loss of Employment and Employment Opportunity

1. The Applicant has not returned to full-time employment since her employment at the Respondent's Post Office ceased. Evidence in support of the Applicant's continued inability to undertake suitable employment, comprise the following:
   • (a) Expert evidence as outlined above; and
   • (b) The evidence of the Applicant as further confirmed and updated in her affidavit dated 17 August 2015.
2. As indicated above, in my view, the expert evidence was compelling and consistent with the evidence given by the Applicant.
3. The Applicant tendered an expert report prepared by Cumpston Sarjeant Consultant Actuaries for the purpose of providing professional calculations of her past and estimated future loss of earnings and superannuation. Against the objection of Respondent's Counsel, I allowed this report to be tendered. I accept that it is not relied upon as evidence of the Applicant's probable economic loss of future earnings or future incapacity to work. Rather, once the Tribunal has found an entitlement, it provides an actuarially sound basis for the calculation of past and assessment of future loss of earnings and superannuation.
4. As indicated above, I am satisfied that but for the Applicant's termination of employment with the Respondent, she would have continued in such employment or in equivalent suitable employment.
5. In relation to her future income earning capacity, the expert opinions are consistent in predicting that the Applicant will likely resume her capacity for full-time employment, with the assistance of continued psychotherapy and once legal proceedings have been concluded. In my view, given the delayed recovery to date, notwithstanding the Applicant's effort's to retrain herself and engage in limited private employment, it is appropriate to allow a period of a further 18 months compensation for loss of future earning capacity.
6. I now turn to the specific calculations for these heads of loss.

1. The Applicant gave evidence that she would have continued working at the Post Office for the foreseeable future, but for the sexual harassment. The Respondent acknowledged that she was a competent worker and he appreciated her performance. I accept the Applicant's evidence to the effect that she was assured by the Respondent that her employment was secure, subject only to the return of his son to the Post Office. Accordingly, the position cannot be treated as a permanent position. Although the Respondent did give evidence to the effect that economic conditions were such that the Applicant's position could no longer be maintained, there was no objective evidence produced to that effect and there was no evidence that the Applicant had ever been advised that her position was no longer financially viable for the business. In all the circumstances, I am satisfied that but for the occurrence and impact of the sexual harassment, the Applicant would have continued her employment with the Respondent for an indefinite period and thereafter have secured alternative employment, at least at an equivalent level of remuneration.
2. Having regard to the experience and vocational skills which the Applicant had acquired from past employment together with her demonstrated capacity to secure continued employment in the past, I am satisfied that she would have had very good prospects of securing further suitable employment.
3. The Applicant's affidavit calculates her loss of gross income up to 16 August 2015 as follows: $872 per week x 123 weeks = $107,256.00.
4. The Applicant's income receipts total $41,974.50 comprising:
   • (a) WorkCover payments received between 5 April 2013 and 31 May 2014, totalling $37,349.00;
   • (b) Invoices issued for professional massage services totalling $1,470.50; and
   • (c) Invoices issued for the sale of her artwork totalling $3,110.00.
5. Accordingly, past gross loss of earnings to 16 August 2015, calculated by the Applicant, after adjustment for WorkCover and income received or due is $65,326.50 ($107,256.00 - $41,974.50). I note that the Applicant has given pre-tax figures and has not allowed any amount for superannuation or increase in wages.
6. In the report of Cumpston Sarjeant, the relevant calculation for lost gross earnings from 4 April 2013 to 8 October is $120,900.00 plus $11,300.00 for superannuation, totalling $132,200.00. The after tax figure is $111,000.
7. After taking into account WorkCover, art and massage invoices totalling $41,974.50, the gross loss of earnings is $90,225.50. The difference between the two figures derived from the calculations by the Applicant and Cumpston Sarjeant (namely, $65,326.50 against $90,225.50) is attributable to three factors: superannuation ($11,300.00); the annual wage increase applied by Cumpston Sarjeant, in accordance with average weekly earnings of Victorian females; and the Cumpston Sarjeant report also takes into account an additional three weeks of lost earnings, as it calculates up to 8 October 2015, whereas the Applicant's affidavit calculates up to 16 August 2015.
8. According to the above analysis, the Cumpston Sarjeant report is within a reasonable approximation of the Applicant's own less generous estimation of her loss of income, in her affidavit of 17 August 2015.
9. I am satisfied that the net value of lost earnings calculated in the Cumpston Sarjeant report, including superannuation ($111,000.00), is a fair estimate of actual lost net earnings before WorkCover, art and massage invoices are deducted. After deducting $41,974.50, I find that the value of lost earnings from 4 April 2013 to 8 October 2015 is approximately $69,025.50. I propose to award the discounted sum of $60,000, taking account of the risk of the Applicant not securing continuous employment for that period.

1. As indicated above, and having regard to the expert evidence and the admissions of the Applicant, it is appropriate to make a relatively modest allowance for loss of future income earning capacity based upon the Applicant's inability to resume full-time employment for up to 18 months.
2. Having regard to tables 4.1 and 4.2 in the Cumpston Sarjeant report and allowing a discounted net earnings for 18 months of $60,000, and net superannuation of $11,250, together discounted by 15% for vicissitudes of life, I propose to award the sum of $60,000 on account of lost future net earnings and superannuation.

1. In her affidavit dated 17 August 2015, the Applicant details expenses, excluding legal fees, necessarily incurred in connection with:
   • (a) The services of health professionals, after allowing for any Medicare rebate, comprising:
     1. $69.90 for appointments with Dr Phoebe Kok;
     2. $65.20 for appointments counselling appointments with Barbara Dickson; and
     3. $164.13 for appointments with Dr Emily Hill.
   • (b) Cost of medication in the sum of $282.90 including anti-depressants and sleeping tablets;
   • (c) Fees charged for medical reports tendered in this proceeding, comprising:
     1. $445.50 for the report from Dr Frances Maxwell;[145] and
     2. $2,750.00 for the report from Professor Lorraine Dennerstein.[146]
   • (d) Fees charged for recovery of mobile phone data tendered in this proceeding, comprising:
     1. $880.00 paid to National Surveillance and Intelligence;[147]
     2. $106.78 paid to MyCommerce;[148]
     3. $462.00 paid to Data Recovery Express;[149] and
     4. $72.63 paid to DRI Wondershare Data.[150]
   • (e) Relocation expenses as a result of the Applicant relocating to a suburb three hours away from Geelong, comprising:
     1. $1,457.50 for removalist;[151]
     2. $250.00 for Truck Hire;
     3. $228.00 for return Ferry Trips to and from Geelong; and
     4. $1,548.08 in fees associated with the Applicant and her husband breaking a lease for a business premises in Geelong.[152]
2. The aggregate of the expenses, detailed above, is $8,782.62. In addition, the Applicant estimates that the fee for the report of Cumpston Sarjeant, will be between $1,500 and $2,000. I will allow $1,500.

1. The Applicant continues to receive psychotherapy at least twice per month from her Counsellor and anticipates that she will need to continue to do so for the foreseeable future. Monthly fees for the two sessions total $130.40.
2. In addition, the Applicant continues to incur approximately $37.45 per month for the cost of antidepressant medication and sleeping tablets.
3. Expenses for psychotherapy and medication for 18 months would slightly exceed $3,000. I propose to award the sum of $2,000 on account of such future expenses.

1. Accordingly, compensation to be awarded to the Applicant totals $332,280.00 comprising the following components:
   • (a) Damages, including aggravated damages of $200,000;
   • (b) Past loss of net earnings and superannuation of $60,000;
   • (c) Future loss of net earnings and superannuation of $60,000;
   • (d) Out of pocket expenses, incurred or to be incurred of $12,280.[153]

1. Section 109 of the VCAT Act prescribes the general rule in proceedings before the Tribunal that each party bears their own costs. Nevertheless, the Tribunal may order a party to pay all or a specified part of the costs of another party, but only if the Tribunal is satisfied that it is fair to do so after having regard to the matters set out in sub-s (3).
2. Section 111 of the VCAT Act provides:

If the Tribunal makes an order for costs, the Tribunal -

(b) may order that costs be assessed, settled, taxed or reviewed by the Costs Court.

1. In the Human Rights jurisdiction of the Tribunal, it has sometimes been expressed to the effect that an order for costs will only be made in special and limited circumstances.[154] This is because, being a protective jurisdiction, cost orders might operate as a discouragement, preventing complaints from being made to the Tribunal.[155]
2. Similar sentiments have been expressed in discrimination matters in the Federal Magistrates' Court. In McKenzie v Department of Urban Services, Raphael FM said:[156]

Anti-discrimination matters are generally considered to be a type of dispute which do not attract orders for costs. There was no provision for costs in the inquiry system previously operated by HREOC. In State tribunals there is provision to award costs but this is not often done. The Federal Court and the Federal Magistrates Court are courts of law and not tribunals and the HREOC Act does not contain any prohibition on the award of costs. In previous matters ... I have indicated that I think an award of costs is appropriate where otherwise a party may have the benefit of his or her award of damages totally eliminated by the cost of the proceedings.

1. The purpose of the general rule is to promote access to justice generally and to minimise the overall level of costs in Tribunal proceedings as far as practicable.[157]
2. Nevertheless, while an award of costs may be made in limited and special circumstances, consistent with the public policy interest in not discouraging complaints in the human rights jurisdiction of the Tribunal, the test in making an award of costs, in human rights matters, as in all matters in the Tribunal, is whether 'it is fair to do so' having regard to relevant matters in s 109(3)
3. In Tan v Xenos,[158] Judge Harbison VP discussed some of the cost issues that can arise in cases under the former Equal Opportunity Act 1995 (Vic). The case before Her Honour involved a fifteen day hearing which resulted in an award to the complainant of $100,000. The complainant's solicitor estimated her actual legal costs to be over $180,000, including counsel's fees of $65,000, solicitor's fees of over $12,000 and various disbursements. The respondent's legal costs were estimated by his solicitor at over $200,000.
4. As to the making of costs orders in complex equal opportunity cases, Her Honour said:[159]

The Complainant has relied on the manner in which this proceeding was conducted, in similar fashion to that in a court, to justify an award of costs. In particular the Complainant points to the power in section 109 to take into account the nature and complexity of the proceedings.

This argument was successful before His Honour Judge Dove in Bryce v City Hall Albury Wodonga Pty Ltd trading as City Hall Hotel (2004) VCAT 2013. He described the trial as follows:

The proceeding was a strongly contested action. Very much like a civil claim in negligence, both liability and damages were in issue. In all, fourteen witnesses were called, and the majority of those were cross-examined in detail and at length. During the hearing, it became apparent to me that neither side was willing to make any concession to the other. In sporting terms, it was a bruising battle. It has been stated, correctly, that it ran for four days. Expedition, which is a cornerstone of the Tribunal, as opposed to the often cumbersome and protracted hearings in courts of law, was not in the minds of the parties or their legal representatives here.

In that case, as recognition of the complexity of the matter and its commercial importance to the parties, His Honour awarded costs to the successful Complainant.

This approach has also been followed in cases at the Tribunal in several of its lists, particularly in relation to complex commercial disputes. A long, complex commercial dispute is, however, very different to a long, complex dispute in the anti-discrimination list. In this list, further considerations apply.

1. Her Honour then expressed her opinion as to whether costs should follow the event in equal opportunity cases:

Decisions regarding costs in the Anti-Discrimination list of this Tribunal have emphasised the objective set out in section 3 of the Equal Opportunity Act, to provide redress for people who have been sexually harassed or discriminated against, and that it is important that potential claimants are not deterred from seeking redress by the prospect of a significant costs order against them. [160]

The basis for the generally cautious approach to awarding costs is to preserve access to the Tribunal for claimants. The Tribunal is also concerned not to discourage litigants from presenting their claims in person, without legal representation. If costs were generally awarded for successful claims, or against unsuccessful claimants, the issue of costs would become a significant barrier to issuing in this forum. In this case, it is the successful claimant who stands to lose if costs are not awarded, but this will not always be the case. If costs orders were made as a matter of course, to "follow the event" as is the case in the Courts, a significant advantage of access to this Tribunal would be neutralised.[161]

1. I endorse Her Honour's comments. There is no special rule for awarding costs to successful claimants in sexual harassment cases. However, there may still be compelling reasons to award costs, wholly or in part, in special circumstances. In Tan v Xenos, Harbison J was satisfied that certain special circumstances rendered the case more complex by reason that the Respondent had led irrelevant material thus unreasonably protracting the hearing. As a consequence the respondent was ordered to pay one third of the complainant's taxed costs.[162] Consistent with the sentiment expressed in the McKenzie case above, Her Honour was also minded that the costs incurred by the applicant would significantly diminish, if not eliminate, any award of damages.

1. The Tribunal's jurisdiction under s 109 was considered by Gillard J in Vero Insurance Ltd v The Gombac Group Pty Ltd,[163] His Honour said as to the power in s 109(3) of the VCAT Act:[164]

It can be seen that the general rule to apply in all proceedings is that "each party is to bear their own costs in the proceeding." Despite the general rule, the Tribunal may at any time order a party to pay costs to another party. The general rule expressed in s.109(1) must yield to a finding by the Tribunal pursuant to s.109(3). However, the Tribunal may not make an order unless it is "satisfied that it is fair to do so", and in arriving at that decision the Tribunal is bound to have regard to a series of matters set out in s.109(3). Despite the fact that the various matters are listed, s.109(3)(e) operates to extend the relevant matters if the Tribunal considers that some other matter is relevant. That is, the listed matters are not exhaustive.

It follows that the general rule applies and the Tribunal may only make an order for costs if it is satisfied that it is fair to do so. That finding is an essential prerequisite to making an order for costs.

In approaching the question of any application for costs pursuant to s.109 in any proceeding in VCAT, the Tribunal should approach the question on a step by step basis, as follows -

(i) The prima facie rule is that each party should bear their own costs of the proceeding.

(ii) The Tribunal may make an order awarding costs, being all or a specified part of costs, only if it is satisfied that it is fair to do so. That is a finding essential to making an order.

(iii) In determining whether it is fair to do so, that is, to award costs, the Tribunal must have regard to the matters stated in s.109(3). The Tribunal must have regard to the specified matters in determining the question, and by reason of paragraph (e) the Tribunal may also take into account any other matter that it considers relevant to the question.

...Whilst it is appropriate for the Tribunal to consider each of the specified matters in s.109(3) and express a view as to the weight that should be attached to the particular matters relied upon, in the end it is important that the Tribunal consider all the matters together and determine whether it is fair to make an order for costs. When dealt with in isolation, each of the matters may lead to the conclusion that it is not fair to make an order for costs, but when taken together, the Tribunal may be satisfied that it is fair to do so. It is the totality of all relevant matters under s.109(3) that must be considered in the context of the prima facie rule.

Some of the matters specified in s.109(3) provide guidance to the Tribunal as to what orders should be made. For example, findings based on s.109(3)(a) and (b) would lead to an order being made against the party guilty of the conduct identified. Section 109(3)(c) provides some guidance in that if the party makes a claim that has no tenable basis in fact or law, then that party should pay costs. On the other hand, s.109(3)(d) does not provide any guidance as to how a finding in relation to the nature and complexity of the proceeding should result in an order for costs. In this sense the paragraph is neutral, and in considering and having regard to the nature and complexity of a proceeding, the Tribunal may in all the circumstances conclude that a costs order should be made, or it may conclude that by reason of the nature and complexity of the proceeding no costs order should be made. But it must be steadily borne in mind that whatever findings may be made, having considered the matters set out in s.109(3), an order can only be made if the Tribunal is "satisfied that it is fair to do so.

1. Respondent's Counsel detailed certain procedural delays in the commencement or continuation of the hearing, occasioned by: the Applicant's failure to make arrangements for videoconferencing facilities for an interstate expert witness, unexpectedly unavailable in person; illness of Applicant's Counsel; the late filing of additional witness statements by the Applicant; and the Applicant's recusal application. Respondent's Counsel submitted to the effect that the Respondent incurred significant costs as a consequence, which the Applicant ought to be ordered to pay. No particulars of additional costs incurred by the Respondent was provided. However, in my view none of the matters referred to were occasioned by the deliberate or unreasonable action of the Applicant.
2. In regard to the late filing of witness statements by the Applicant, these were filed, with the leave of the Tribunal, only after the Applicant became aware of additional witnesses. The statements of Ms Korondy and Ms Sumner, were specifically procured for the purpose of rebutting certain assertions made in the Respondent's witness statement; and providing evidence of past similar behaviour by the Respondent toward female employees. As indicated in the Initial Reasons of the Tribunal, without regard to the efficacy of such tendency evidence, I was otherwise satisfied to the applicable standard of proof that alleged incidents of sexual harassment, were proven.
3. There is no basis for awarding costs in favour of the Respondent by reason of the above matters.
4. I now turn to relevant considerations under s 109(3) in the context of matters relied upon by the Applicant.
5. First, pursuant to s 109(3)(a):

whether a party has conducted the proceeding in a way that unnecessarily disadvantaged another party to the proceeding by conduct such as -

(i) failing to comply with an order or direction of the Tribunal without reasonable excuse;

(ii) failing to comply with this Act, the regulations, the rules or an enabling enactment;

(iii) asking for an adjournment as a result of (i) or (ii);

(v) attempting to deceive another party or the Tribunal;

1. Contrary to s 109(3)(a)(i), the Applicant alleges that the Respondent failed to comply with Orders of the Tribunal in the following respects:
   • (a) By filing and serving his Witness Statement and submissions on 27 February 2014 instead of by 24 February 2014, as ordered;
   • (b) By filing and serving his Supplementary Witness Statement on 11 June 2014, instead of on 26 May 2014, as ordered;
   • (c) By providing to the Applicant employment contracts and documentation relating to the Applicant's sick leave, over two weeks late on 10 June 2014 instead of on 26 May 2014, as ordered;
   • (d) By filing and serving submissions in reply dated 11 February 2015, to the Applicant's submissions in reply, without the consent of the Applicant or leave of the Tribunal.
2. While each of the above matters strictly constitute non-compliance with Tribunal orders, I am not satisfied that they were either so serious or actually disadvantaged the Applicant as to warrant a costs order in the Applicant's favour.
3. Contrary to s 109(3)(a)(iv), the Applicant alleges that the Respondent caused the hearing listed for 19 August 2014 to be vacated by requesting reasons for the order of the Tribunal dated 11 July 2014 on 25 July 2014.
4. The Respondent was entitled to seek reasons in the circumstances and I am not satisfied that the Applicant suffered additional costs unreasonably, particularly having regard to other concurrent procedural matters.
5. Contrary to s 109(3)(a)(vi), the Applicant alleges to the effect that the Respondent caused unreasonable and avoidable delay by frustrating the Applicant's presentation of her case; and causing unreasonable and avoidable stress upon the Applicant and her solicitors:
   • (a) By continually refusing to provide Australia Post documents to the Applicant, despite numerous requests;
   • (b) By giving only one week's notice that the medical experts of the Applicant were required to be available for cross-examination at the hearing; and
   • (c) By requesting a further independent medical assessment of the Applicant on 2 December 2014, less than two weeks prior to the hearing listed to commence on 15 December 2014.
6. I am satisfied that each of the above matters are likely to have caused unreasonable stress upon the Applicant; and delay and additional costs in the preparation of the Applicant's case.
7. Secondly, pursuant to s 109(3)(b), whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding.
8. The Initial Reasons of the Tribunal set out in some detail the conduct of each party in the proceeding. In my view, the Respondent unreasonably added to the Applicant's preparation of her case and prolonged the hearing by persisting with outright denials and implausible explanations in the face of strong and consistent evidence of the Applicant. In reaching this conclusion I draw upon the findings previously made in the Initial Reasons:[165]

My overall assessment of the Respondent is that he was an evasive and unreliable witness. In reaching this conclusion, I have had particular regard to:

1. A pattern of apparent selective recollections, in his oral evidence and witness statements;
2. His implausible explanations for the Applicant's behaviour or apparent change of behaviour;
3. His failure to provide either any comment or plausible explanation for a number of text messages and the St Valentine's Day Card;
4. His failure to recall aspects of significant events; and
5. Inconsistencies between his written statements and oral evidence.

...for the reasons given above, taking his evidence as a whole, I am not satisfied that he was a credible or reliable witness in relation to the matters in issue. In particular:

(a) He was frequently evasive and non-responsive in his answers under cross-examination;

(b) Where he could not recall conversations or text messages, he did not always deny that they did occur, but otherwise could not give any explanation for them;

(c) Where there were text messages or phone records produced, he did not contest their content but equally provided no or no plausible explanation for them; and

(d) Where he denied conversations or text messages, his accounts were often implausible and self-serving.

1. I was also satisfied that the Respondent's evidence in relation to the Applicant's alleged change of behaviour toward him was vague and entirely inconsistent with the Applicant's circumstances. Furthermore, I rejected any imputation which might arise from the Respondent's evidence that the Applicant engaged in flirtatious or provocative behaviour and that such behaviour induced the Respondent to initially 'test the waters' or otherwise continue his attention toward her.[166]
2. I was further satisfied that the text messages provided highly reliable evidence of the knowledge and state of mind of the parties at various times throughout their interactions and also provided a reliable indication as to what events preceded the sending of the messages. In consequence, a significant amount of the Respondent's narrative was contradicted or became highly implausible when considered in the light of the text messages. Although the Respondent frequently could not recall them or the meaning or intent of the messages, there was no challenge to the veracity of those text messages which had been produced.[167]
3. I was further satisfied that there were numerous occasions, both in his witness statement and cross-examination, when the Respondent had a surprising lack of memory or poor recall of events which were potentially significant. He showed a repeated tendency to recall events in a way which supported his narrative, but without any particularity or detail about exactly what was said or done.[168]
4. Finally, even where the Respondent did not contest certain comments or conversations which the Applicant alleged, he otherwise rejected the connotation of sexualised comment or that such comment could amount to sexual harassment.[169] In my view, the position adopted by the Respondent was untenable in the face of the clear imputations which attached to such comments, in the context in which they were made.
5. Thirdly, pursuant to s 109(3)(c), the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law.
6. Both parties were represented throughout the proceeding and the hearing, by junior counsel and by legal practitioners. In this respect there was no great disparity in the relative strengths of the parties as might be relevant to a costs order, if one party were unrepresented.
7. However, Applicant's Counsel submitted that the Respondent's case was very weak and that the Respondent's attention had been directed to the documentary evidence upon which the Applicant proposed to rely in a letter of offer to the Respondent dated 16 January 2014.
8. In my view, the documentary evidence relied upon by the Applicant was significant and relevantly probative and entirely consistent with the position put by the Applicant.
9. Furthermore, as detailed in the Initial Reasons, the evidence otherwise presented by the Applicant was credible and reliable:

The Applicant was generally consistent in her evidence which was also corroborated to the extent of available text messages and telephone records; I am satisfied that she gave a credible account of events, which were also plausible, having regard to the context and surrounding circumstances; I am also satisfied that her answers under cross-examination were responsive and consistent; and taking her evidence as a whole, I do not consider that there was any reasonable basis to impugn her credibility or reliability in relation to any issue in dispute;[170]

...under cross-examination the Applicant maintained her accounts of the alleged events, in a responsive manner. In my view, no inconsistencies of substance were identified. The Applicant's recall of the events is also entirely consistent with the phone and text messages between the parties.[171]

1. Fourthly, pursuant to s 109(3)(d), the nature and complexity of the proceeding.
2. Whilst there were 33 alleged incidents of sexual harassment found proven under the EOA, they were not in any one instance of great complexity, nor did the case call for the determination or construction of legal issues of great complexity. There was compelling expert evidence called by the Applicant and substantial consensus between the experts as to the psychological condition of the Applicant. There was also significant objective evidence in the form of text messages, telephone records and the Valentine's card. Otherwise the case was predominantly one of credit with very different versions being advanced by the Applicant and the Respondent. On the basis of paragraph (d) alone, there is no reason to depart from the prima facie rule set out in s 109(1) that each party should bear their own costs of the proceeding.
3. Finally, pursuant to s 109(3)(e), any other matter the Tribunal considers relevant.
4. While Clause 22 of Schedule 1 to the VCAT Act provides that ss 112 to 115[172] do not apply to a proceeding under the EOA, nevertheless the making of settlement offers is an additional matter which may be taken into account under s 109(3)(e).
5. Counsel for each party provided details of the various offers made to settle the Applicant's claim. This information, comprised within the affidavits of Tara Paatsch dated 17 August 2015 (three) and 1 October 2015, and affidavits of Jessica Main dated 21 September 2015 (three), and each parties' submissions as to costs, were held in sealed envelopes and not opened or examined by me until a determination as to compensation had been made.
6. I propose to only make reference to the written offers, which I summarise as follows:
   • (e) The Applicant made the following written offers:[173]
     1. A First Offer on 26 April 2013, for the sum of $60,344; This Offer was made prior to the commencement of proceedings on 3 July 2013 in an attempt to avoid the need to commence proceedings;[174]
     2. A Second Offer on 16 January 2014 for the sum of $50,000 plus costs;[175]
     3. A Third Offer on 16 December 2014, for the sum of $195,000 (inclusive of costs).
   • (f) The Respondent made the following written offers:
     1. A First Offer on 4 September 2013, the sum of $9,500;
     2. A Second Offer on 8 October, 2013, the sum of $20,000;
     3. A Third Offer on 20 December 2013, the sum of $40,000.
     4. A Fourth Offer on 11 February 2014, the sum of $50,000; and
     5. A Fifth Offer on 14 December 2014, the sum of $75,000.
7. The Applicant's Third Offer was also proposed on the basis that the Applicant assessed her likely award of compensation and costs after hearing at: $100,000 general damages; $39,384 loss of net income; $6,459.50 out-of-pocket expenses; and costs, then estimated to be $129,001.85.
8. The Applicant has incurred legal costs and disbursements from the commencement of proceedings until 10 July 2015, being the date of receipt of the Initial Reasons and Orders, totalling $172,387.27.
9. The Respondent's First, Fourth and Fifth Offers each contained a reference to a date upon which the offer lapsed and that the Respondent would rely upon a failure to accept such offer in an application for costs pursuant to s 109(3)(e) of the VCAT Act.
10. The Respondent submitted that the Tribunal cannot determine that the parties intended to be bound by the offers made. I find this to be a somewhat curious submission which flies in the face of the terms of the Offers and the Respondent's assertion that its Offers were made in a genuine attempt to resolve the proceeding.
11. I make the following observations:
    • (g) My orders as to compensation are significantly in excess of the offers made by both parties;
    • (h) The initial offers made by the Respondent in the amounts of $9,500, $20,000 and $40,000 were low enough in the circumstances to not be regarded as bona fide attempts to settle the claim at the stage at which they were made; and
    • (i) Each of the offers made by the Applicant, at the stage at which they were made, represented reasonable bona fide attempts to settle the Applicant's claim.
12. In my view, the failure of the Respondent to accept any of the offers made by the Applicant was unreasonable and is a relevant matter to take into account in favour of awarding costs in favour of the Applicant, particularly in view of the substantial costs which have now been incurred.
13. For the reasons given above I am satisfied that it is fair to order costs in favour of the Applicant having regard to the considerations set out in s 109(3)(a)(vi), (b), (c) and (e), from 16 January 2014, being the date of the Applicant's Second Offer, as described above, but excluding costs referable to the claims which relied upon sections 15, 103 and 104 of the EOA.
14. I note from the affidavits of the Applicant's solicitor[176] that, for reasons stated in such affidavits, the Applicant's solicitor waived the Applicant's legal costs for the period 8 April 2014 to 22 April 2014 inclusive. Accordingly, any legal costs incurred by the Applicant associated with the events relating to the Directions Hearing on 12 May 2014 and the application for the reconstitution of the Tribunal, are not included within the ambit of costs claimed in association with the proceeding.

1. The Tribunal does not have a scale of costs. Under rule 1.07 of the Victorian Civil and Administrative Tribunal Rules 2008, the power to award costs in the Tribunal effectively incorporates the rules applying in the County Court, unless the Tribunal orders otherwise. Amendments to the County Court Civil Procedure Rules 2008 ('the Rules'), which became effective on 6 October 2014, repealed previous rules regarding orders to pay party and party costs, solicitor and client costs or costs on an indemnity basis, and replaced them with power to make an order for costs on a 'standard basis' or on an 'indemnity basis'.
2. The Rules still allow an order for costs to be taxed on a solicitor and client basis, although the 'standard basis' appears similar to the traditional 'solicitor and client' basis in any event. Relevantly, Part 3 of the County Court Rules (comprising rules 63A.27 to 63A.31) is titled 'Costs of Party in a Proceeding'. Rule 63A.27 provides that Part 3:

applies to costs in a proceeding which by or under any Act or these Rules or any order of the Court are to be paid to a party to the proceeding either by another party or out of a fund.

Subject to this Part, costs in a proceeding which are to be taxed shall be taxed on -

On a taxation on a standard basis, all costs reasonably incurred and of reasonable amount shall be allowed.

1. This appears very similar, if not equivalent, to the traditional measure of 'solicitor and client' costs. Whereas 'solicitor and client' costs included all reasonable costs reasonably incurred, party and party costs were only necessary and proper costs. Furthermore, in Gruma Oceania Pty Ltd v Bakar (No 2),[177] the Court observed:

It can be seen from the above amendments to the Rules that from 1 April 2013: the usual basis of taxation became the standard basis; party and party costs and solicitor and client costs were deleted from r 63.28; and the former definition of solicitor and client basis was adopted for the definition of the standard basis. [footnote omitted]

1. The transitional provision for the 2015 amendments is set out in r 63A.28. The regulation provides:

For the avoidance of doubt, these Rules, as amended by the County Court (Chapter I Costs Amendment) Rules 2014, apply to all things done or required to be done or omitted to be done on or after 6 October 2014 in, or in relation to, any proceeding in the Court, including the Costs court (including all work and all amendments, applications and orders) regardless of the date of commencement of the proceeding.

1. Accordingly, I propose to order costs to be assessed under the applicable County Court Scale taxed on a standard basis, in default of agreement.

1. For the reasons set out above, the Tribunal will order that pursuant to s 125(a)(ii) of the EOA, the Respondent pay the Applicant compensation in the aggregate sum of $332,280, comprising:
   • (a) General damages of $180,000;
   • (b) Aggravated damages of $20,000;
   • (c) Past loss of net earnings and superannuation of $60,000;
   • (d) Future loss of net earnings and superannuation of $60,000; and
   • (e) Out of pocket expenses, incurred or to be incurred, of $12,280.
2. I further order the Respondent to pay the Applicant's costs of the proceeding, subject to the limitations contained within the Order.

[1] Collins v Smith (Human Rights) [2015] VCAT 1029.

[2] The Tribunal orders referred to s 134A of the ACA which the Commission, it its written submissions, correctly assumed should have been a reference 's 134AA' of the ACA.

[3] The Tribunal orders referred to the Workplace Injury Rehabilitation and Compensation Act 2014 which the Commission, in its written submissions, correctly pointed out should have read '2013'.

[4] GLS v PLP (Human Rights) [2013] VCAT 221 at [259] per Garde J.

[5] Paragraph [84] of the Commission's submission.

[6] I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41; (2002) 210 CLR 109 at [57].

[7] (Human Rights) [2013] VCAT 221.

[8] The case concerned s 136(a)(ii) of the Equal Opportunity Act, which was in materially the same terms as s 125(a)(ii) of the EOA.

[9] Pearce & Geddes: Statutory Interpretation in Australia (Seventh ed), 2011 at 279.

[10] [2004] HCA 24; [2004] 218 CLR 89 at [42]- [43].

1. [11] [1991] HCA 49; (1992) 173 CLR 349.

[12] At 359 per Mason CJ and Gaudron J.

[13] [2014] FCAFC 82 at [26].

[16] Hall & Ors v A. & A. Sheiban Pty Ltd & Ors [1989] FCA 72; (1989) 20 FCR 217, 256 (Wilcox J); Erwin v Vergara (No 3) [2013] FCA 1311 per Bromberg J at [658].

[17] Hansard, Victorian Parliament: Legislative Assembly 10 March 2010 at p 784.

[18] Paragraphs [17]-[19] of the Commission's submission.

[19] Subject to amendments over time and since 1993, together with the Accident Compensation (WorkCover Insurance) Act 1993 (Vic) (the ACWIA**)**.

[20] ACA, s 134, repealed in 2004 by Act No 102/2004. Subsequently WorkCover insurance policies were dealt with by ss 7 and 9 of the ACWIA.

[22] Paragraphs [17]-[19] of the Commission's submission.

[24] The Tribunal acknowledges the Commission's submission at [20]-[24].

[25] See the Explanatory Memorandum to the Workplace Injury Rehabilitation and Compensation Bill 2013 at p 178.

[26] See ACA, s 134AB(37) and WIRCA, s 325(1).

[27] The Commission noted that both the Applicant and the Respondent accept that any differences between the laws are not relevant for the present purposes.

[28] Paragraphs [8]-[13] of Applicant Counsel's submission dated 2 November 2015.

[29] Paragraphs [14]-[17] of Applicant Counsel's submission dated 2 November 2015.

[30] Paragraphs [18]-[29] of Applicant Counsel's submission dated 2 November 2015.

[31] Paragraphs 8-9 of Commission's submission. The Tribunal acknowledges that Applicant's Counsel made similar submissions, parts of which are also incorporated hereunder.

[32] The Tribunal also acknowledges that Applicant's Counsel expanded upon this point in paragraphs 8 and 9 of the written submissions dated 2 November 2015.

[33] [2014] FCAFC 82.

[34] [2013] HCA 2 at [98] (footnotes omitted, emphasis added).

[35] Whilst Gageler J delivered a dissenting judgment, his statement of the relevant principles of construction accorded with that expressed by the majority Ibid at [78] (Crennan, Kiefel and Bell JJ); and see ACN 005 057 349 Pty Ltd v Commissioner of State Revenue [2015] VSC 76 at [130]- [131] (Sloss J); and Fonteio v Morando Bros Pty Ltd [1971] VicRp 81; [1971] VR 658 at 662 (Full Court).

[36] Ibid at [99] (footnote omitted).

[37] [1908] HCA 55; (1908) 7 CLR 1 at 7.

[39] [2006] HCA 50; (2006) 228 CLR 566 at [48] (footnotes omitted, emphasis added).

1. [40] [1991] HCA 21; (1991) 172 CLR 1 at 17 (footnotes omitted, emphasis added). And see Channel Pastoral Holdings Pty Ltd v Commissioner of Taxation (2015) 321 ALR 261 at [96] (Allsop CJ, Edmonds, Gordon, Pagone and Davies JJ).

[41] (2006) 225 CLR 130 at [4] (footnotes omitted).

[42] (2013) 42 VR 124 at [88]. His honour referred to Shergold v Tanner [2002] HCA 19; (2002) 209 CLR 126 at 136 and Re Applications of Shephard [1983] 1 NSWLR 96.

[43] Attorney-General v Exeter Corporation (1911) 1 KB 1092 at 1100, quoted by Dixon J in Perpetual Executors and Trustees Association of Australia Ltd v Federal Commissioner of Taxation [1948] HCA 24; (1948) 77 CLR 1 at 29. And see Smith v The Queen [1994] HCA 60; (1994) 181 CLR 338 at 348 (Mason CJ, Dawson, Gaudron and McHugh JJ).

[44] Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130 at [18] (Gummow and Hayne JJ).

[45] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 at [47] (Hayne, Heydon, Crennan and Kiefel JJ).

[46] Project Blue Sky v ABA 194 CLR 355 at [69]-[70] (McHugh, Gummow, Kirby, Hayne JJ).

[47] Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55 at [39] (The Court).

[48] Thiess v Collector of Customs [2014] HCA 12 (The Court)).

[49] Project Blue Sky v ABA (1998) 194 CLR 355 at [78] (McHugh, Gummow, Kirby, Hayne JJ).

[50] See Statutory Interpretation in Australia, 8th edition, Pearce and Geddes, p 361.

1. [51] See for example IW v City of Perth [1997] HCA 30; 191 CLR 1; (1997) 94 LGERA 224; (1997) 146 ALR 696; (1997) 71 ALJR 943 (31 July 1997); Commonwealth v Anti discrimination Tribunal (Tasmania) [2008] FCAFC 104; 169 FCR 85; 248 ALR 494; 103 ALD 1 [154] 'Heerey J's proposition that because the Anti-Discrimination Act is beneficial legislation, it ought to be given a generous and liberal construction is obviously correct'.

[52] [2011] HCA 42 at [24] per French CJ, Gummow, Hayne, Kiefel and Bell JJ (emphasis added).

[53] [1980] HCA 8; (1980) 142 CLR 237. Wardley concerned the effect of s 109 of the Constitution and the question of inconsistency between State and federal laws; but the Commission contends that the reasoning is nonetheless apt to the present case.

[54] [1980] HCA 8; (1980) 142 CLR 237 at [244], [249] and [251].

[55] Sections 134AB(22), (23), (31) and (34) of the ACA; and ss 340, 341, 344 and 346 of the WIRCA.

[56] Nystrom [2006] HCA 50; (2006) 228 CLR 566 at [585].

[57] [2008] VSC 174; (2008) 19 VR 449.

[58] [2008] VSC 174; (2008) 19 VR 449 at [16].

[59] [2008] VSC 174; (2008) 19 VR 449 at [18], [22].

[61] See discussion in Owens [2008] VSC 174; (2008) 19 VR 449 at [17].

[62] Re Beth (2013) 42 VR 124 at [88] (Osborn J).

[63] See Subdivision 1 of Division 2 of Part 4 of the Sentencing Act.

[64] Refer to analysis above, discussing s 138B of the ACA and s 371 of the WIRCA.

[65] [1913] HCA 60; (1913) 17 CLR 370 at [384]

[66] The Commission notes that Judd J had regard to the legislative history and extrinsic materials in Owens [2008] VSC 174; (2008) 19 VR 449 at [8]. Applicant Counsel's submission also deals with this point under paragraphs [18]-[22] of the 2 November 2015 submission.

[67] As was also the case in Re Beth (2013) 42 VR 124 at [90].

[68] Parliament of Victoria, Hansard, Assembly, Thursday 13 April 2000, p 1001: Accident Compensation (Common Law and Benefits) Amendment Bill 2000, second reading speech.

[70] ACA, s 134AB(16)(b); WIRCA, s 335(2)(d).

[72] [2008] VSC 174; (2008) 19 VR 449 at [19].

[73] [2012] VSCA 25; (2012) 34 VR 206 at [24] per Warren CJ, Nettle and Redlich JJ.

[74] [2010] VSCA 121; (2010) 27 VR 499.

[75] [2012] VCC 2025.

[77] [1989] FCA 72; (1989) 20 FCR 217.

[78] Hall & Ors v A. & A. Sheiban Pty Ltd & Ors [1989] FCA 72; (1989) 20 FCR 217, 239 (Lockhart J).

[79] Alexander v Home Office [1988] 2 All ER 118, 122 (May LJ), cited in Hall & Ors v A & A Sheiban Pty Ltd & Ors [1989] FCA 72; (1989) 20 FCR 217, 238 (Lockhart J) and 256 (Wilcox J).

[80] See, eg, Spencer v Dowling [1996] VSC 51; [1997] 2 VR 127 at 144; Richardson v Oracle Corp Australia Ltd [2013] FCA 102; (2014) 223 FCR 334 at [83]; Ewin v Vergara (No 3) [2013] FCA 1311; (2013) 307 ALR 576 at [607].

[81] [2008] VCAT 584.

[82] At [556], [557], [558], [560].

[83] [2009] FCA 680.

[84] [2011] VSCA 447.

[86] [2013] VSCA 76.

[91] [2013] VSC 326.

[95] [2013] FCA 1311.

[96] At [666]. Ewin v Vergara was decided prior to the appeal in Richardson v Oracle being decided.

[97] (Human Rights) [2013] VCAT 221 (13 March 2013).

[99] At [261], [262], [264] and [278].

[100] [2014] FCAFC 82 at [96].

[101] At [21] referring to Richardson v Oracle (first instance) at [248].

[104] Kenny J wrote the lead judgment with whom Besanko and Perram JJ agreed.

[112] In Swan v Monash Law Book Co-operative [2013] VSC 326 a victim of workplace harassment and bullying was awarded $300,000; Willett v Victoria [2013]VSCA 76 a victim of workplace harassment and bullying was awarded $250,000; Tan v Xenos (No 3) [2008] VCAT 584 a victim of sexual harassment was awarded $100,000; Nikolich v Goldman Sach JBWere Services Pty Limited [2006] FCA 784 a victim of workplace bullying and harassment was awarded $80,000; and Walker v Citigroup Global Markets Australia Pty Ltd [2006] FCAFC 101; (2006) 233 ALR 687 $100,000 was awarded for breach of contract.

[113] Richardson v Oracle Corporation [2013] FCA 102; (2014) 223 FCR 334 at [108]- [109].

[119] I adopt the analysis of Emma Starkey and Jenny Vardi in 'Moving with the Times' Law Institute Journal August 2015 at p 51.

[120] Statement of Amanda Collins at paragraph [9].

[121] Statement of Leigh Collins at paragraph [2].

[122] Professor Dennerstein notes at p 9 of her report a weight loss from 62 kgm to 49 kgms.

[123] Dr Hill prepared expert reports dated 16 August 2013 and 23 July 2014, at the request of the Applicant's solicitors, which were tendered without objection as Exhibit N.

[124] Report of Dr Emily Hill dated 23 July 2014 at p 2.

[125] Exhibit M. Ms Knox confirmed the date of the report in cross-examination. The report itself does not have a date visible.

[129] See page 8 of Professor Dennerstein's report.

[131] Statement of Leigh Collins dated 24 January 2014 at [10].

[132] Paragraphs [10]-[12] of the Applicant's affidavit dated 17 August 2015.

[133] Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1 at 8; Myer Stores Ltd v Soo [1991] VicRp 97; [1991] 2 VR 597.

1. [134] See Hall v Sheiban [1989] FCA 72; (1988-89) 85 ALR 503 (Full Court); De Simone v Bevacqua (1994) 7 VAR 246 at 269 (McDonald J); Spencer v Dowling [1996] VSC 51; [1997] 2 VR 127; Coyne v P & O Ports [2000] VCAT 657 (31 March 2000) at p 34-35; Ewin v Vergara (No 3) [2013] FCA 1311 at [676].

[135] [1996] VSC 51; [1997] 2 VR 127 at 144-145.

[136] The Initial Reasons at paragraphs 380; 381(d), (r) (s), (z) and (dd).

[137] The Initial Reasons at paragraph 381 (h), (i), (j) and (ee).

[138] Paragraphs 88-90 of the Commission's submission.

[139] See, eg, Gama v Qantas Airways Ltd (No.2) [2006] FMCA 1767 [129]-[130].

[140] See, eg, Howe v Qantas Airways [2004] FMCA 242 [133].

[141] [2014] NSWDC 185.

[144] [2002] FCA 640.

[145] Tax Invoice from Kardinia Health Ltd marked as 'AJC1'.

[146] Tax Invoice from Platinum Medico-Legal marked as 'AJC2'.

[147] 'AJC3' shows two emails from National Surveillance and Intelligence regarding fees paid.

[148] 'AJC4' shows an email from MyCommerce regarding the data recovery fees paid.

[149] 'AJC5' shows a Tax Invoice from Data Recovery Express.

[150] 'AJC6' shows Billing Information for DRI Wondershare Data.

[151] 'AJC7' shows a copy of a Tax Invoice from Geelong Furniture Removals and Storage for removalist costs.

[152] 'AJC8' shows two Tax Invoices from Maxwell Collins with lease break fees.

[154] Atkins v State of Victoria [1999] VCAT 271; Deckert v Victorian Institute of Dryland Agriculture [2006] VCAT 299 [35]-[38] per McKenzie DP; Tan v Xenos [2008] VCAT 1273 [16]-[20] (Judge Harbison VP); Morros v Chubb Security Personnel Australia [2009] VCAT 1845 [18]-[19] (Megay SM).

[155] See also GLS v PLP at [280].

[156] [2001] FMCA 20 [95].

[157] Stonnington CC v Blue Emporium Pty Ltd [2004] VCAT 1441 [13] (Justice Morris P).

[158] (Anti-Discrimination) [2008] VCAT 1273.

[159] At [11], [12], 14], [15].

[162] In Styles v Murray Meats Pty Ltd (2005) VCAT 2142 the Tribunal awarded costs to the complainant after taking into account that the respondent's defence to the claim of sexual harassment was very weak.

[163] [2007] VSC 117.

[164] Ibid [18]-[20] and [22]-[23] (emphasis in original).

[165] Initial Reasons at [8(b)]; [170].

[167] Initial Reasons at [348] and following.

[168] Initial Reasons at [359]-[360].

[172] Dealing with the consequences of rejecting a settlement offer.

[173] The Second and Third Offers were said by the Applicant to have been made in the form of a Calderbank letter pursuant to the principles established in Calderbank v Calderbank [1975] 3 All ER 333): Counsel's written submission dated 10 September 2015 at [14] and [16].

[174] Affidavit of Tara Paatsch dated 1 October 2015 at [9].

[175] Costs were initially estimated to be $21,012.59 and subsequently revised to $14,290.22: Affidavits of Tara Paatsch dated 17 August 2015 at [9]; and 1 October 2015 at [6]-[8].

[176] Affidavits 2 and 3 of Tara Paatsh dated 17 August 2015.

[177] [2014] VSCA 259, Neave, Santamaria and Kyrou JJA, [5].