Construction of the deed
79 Here, Ms Friend's complaint, as expanded to include the fourth officer, covered a range of claims against the Commonwealth as an employer on the ground of unlawful discrimination because of:
her disability, based on her mental health, when she sought but was refused transfers from her team and the airport, and by the AFP's failure to make reasonable adjustments to accommodate that disability, in contravention of ss 5, 6 and 16 of the DDA;
her sex, based on her unfavourable or detrimental treatment in a way in which a man would not have been treated in the same circumstances, in contravention of s 14 of the SDA.
80 In addition, she had apparently substantial claims of sexual harassment against the sergeant in contravention of s 28A of the SDA and claims against each of the four officers for contraventions of s 14 of the SDA on the same basis as against the Commonwealth. If those claims were established, they may have entitled Ms Friend to substantial damages, including possible aggravated and exemplary damages. The jurisdictional foundation for those claims for damages was the statutory causes of action under the DDA and (possibly) SDA against the Commonwealth as Ms Friend's employer, the officers under the SDA as the individuals whose conduct allegedly amounted to unlawful discrimination, and the sergeant as the person who allegedly contravened s 28A.
81 As Perram J, with whom Collier and Reeves JJ agreed, asked rhetorically in Hughes (t/as Beesley and Hughes Laywers) v Hill (2020) 277 FCR 511 at 521 [47], in a case of sexual harassment contrary to s 28A of the SDA, "what is the ruin of a person's quality of life worth?" (see too at 511 [47]-[48]). His Honour also affirmed that, in assessing statutory damages for unlawful discrimination in accordance with s 46PO(4)(d), the statutory objects of the SDA, and I would add the DDA, are relevant considerations, including the object of the elimination of such discrimination. Such awards can have a public vindicatory effect both for the applicant affected and the public at large. Here, the SDA included the following objects in s 3(a), (b), (c) and (d):
3 Objects
The objects of this Act are:
(a) to give effect to certain provisions of the Convention on the Elimination of All Forms of Discrimination Against Women and to provisions of other relevant international instruments; and
(b) to eliminate, so far as is possible, discrimination against persons on the ground of sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy or breastfeeding in the areas of work, accommodation, education, the provision of goods, facilities and services, the disposal of land, the activities of clubs and the administration of Commonwealth laws and programs; and
…
(c) to eliminate, so far as is possible, discrimination involving sexual harassment in the workplace, in educational institutions and in other areas of public activity; and
(d) to promote recognition and acceptance within the community of the principle of the equality of men and women.
(emphasis added)
82 The DDA has similar objects in s 3.
83 Substantial awards of damages under s 46PO(4)(d) would be well within the discretion of the Court, if it found that Ms Friend's allegations were established, in order to achieve those objects, especially given that such conduct involved the AFP, whose officers the community expects will obey and uphold the law and treat all persons, so far as is reasonably possible in the circumstances, equally regardless of sex or disability.
84 In a real sense the conduct complained of can be seen, if proved, as having driven Ms Friend from being able to pursue her career and, as Perram J put it, ruined her life. She was complaining of bullying and harassing behaviours to the point where, if proved, leaving the injuries to her mental and physical health to one side, she was entitled to consider that it would be impossible to be happy or satisfied in her chosen career because her employer had not, and would not, create a workplace environment in which the alleged unlawful discrimination would not exist or be remedied and that the alleged perpetrators were left to act with impunity. The cause of her claimed loss of a chosen career, because it had been made impossible to pursue could be characterised as a separate, but actual, concurrent cause along with her health conditions, of the potential economic and substantial non-economic losses she claimed.
85 Ms Friend's only accepted claim, to which recital D in the deed and Comcare's invalid decisions of 16 February 2021 referred, was for the conditions accepted in Comcare's July 2014 decision. Importantly, Ms Friend has not made, and Comcare has not accepted, any claim for any aggravation of her injury to her mental health, as appears to have occurred since 14 July 2014 when she had not received a diagnosis as serious as those in the reports of Drs Rees and Moorthy.
86 Any compensation that Comcare has paid can only be characterised under the claim it accepted on 14 July 2014. That is because, first, s 53(1) of the SRCA provides that that Act does not apply in relation to an injury to an employee, such as Ms Friend, unless notice in writing is given to Comcare as soon as practicable after the employee becomes aware of the injury. Secondly, s 54(1) provides that compensation is not payable to a person under the SRCA unless a claim for compensation is made by, or on behalf of, him or her in the prescribed claim form accompanied by a certificate, also in a prescribed form, by a legally qualified medical practitioner. More significantly, the deed provided that the AFP made no admissions about Ms Friend's allegations or her psychiatric injuries "other than to the extent that Ms Friend has an accepted workers' compensation claim", being the claim accepted in Comcare's July 2014 decision.
87 Both parties analysed Gardiner 102 NSWLR 599 in their submissions. It is important to appreciate that this decision concerned the workers' compensation scheme and legislation of New South Wales which has a different statutory basis to the SRCA. Nonetheless, both jurisdiction's workers' compensation, common law and statutory remedies that provide for an employer's duties and liabilities owed to employees, include legislative provisions designed to protect against an employee who has received workers' compensation being able to obtain double recovery or to "double dip" by retaining the benefit of those payments while recovering damages in a personal injuries proceeding for past economic loss.
88 Hence, the employee's statutory obligation to repay the workers' compensation that he or she received up to the time of recovering damages is a head of common law damages because it is a reasonably foreseeable consequence of the employer's breach of its duty of care to the injured employee: Fox 148 CLR at 441-442 per Gibbs CJ, with whom Aickin and Wilson JJ agreed, 446-447 per Brennan J. The Court held that the employer was liable to pay the employee damages for past economic loss in the sum of the gross value (including income tax) of the workers' compensation payments he or she had received plus interest up to the time of the award of damages.
89 In Gardiner 102 NSWLR at 616 [50]-[52], Basten JA observed that there the parties were not able to identify any case dealing with the interrelationship of damages awarded under the Anti-Discrimination Act 1987 (NSW) and workers' compensation legislation. His Honour held that damages for personal injury arising out of the course of employment should be treated as separate and independent from damages for unlawful discrimination. That was because each was a separate, independent and self-contained remedy. He drew on what French J had said in Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 at 281 about the nature of damages under the then s 81(1)(b)(iv) of the SDA that, unconstitutionally (Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245), had empowered the President to make a declaration that a respondent to a complaint pay, as now s 46PO(4)(d) of the AHRC Act authorises this Court to order, "an applicant damages by way of compensation for any loss or damages suffered because of the conduct of the respondent". French J said that the measure of compensation for such loss or damage:
… is to be found, not in the law of tort, but in the words of the statute which require no more to attract the exercise of the Commission's discretion than that the loss or damage be "by reason of" the conduct complained of. That is not to say that every adverse consequence, however remote, is to be compensated. For in this context, as in the wider reaches of the law, "causation is to be understood as the man in the street, and not as either the scientist or metaphysician would understand it": Yorkshire Dale Steam Ship Co Ltd v Minister of War Transport [1942] AC 691 at 706, per Lord Wright. And within the cause-effect framework created by the words of the statute the selection of effects which give rise to liability may be influenced by policy and not merely by logic. In this regard the reasoning of Gummow J in relation to s 82 of the Trade Practices Act 1974 (Cth) is of assistance: Elna Australia Pry Ltd v International Computers (Aust) Pry Ltd (No 2) (1987) 75 ALR 271 at 279; 16 FCR 410; see also Munchies Management Pry Ltd v Belperio (1988) 84 ALR 700 and Pavich v Bobra Nominees Pry Ltd (1988) ATPR (Digest) 46-039.
(emphasis added)
90 I am of opinion that French J's approach to the construction of the analogue of s 46PO(4)(d) is correct. The remedy, like s 82 of the Trade Practices Act 1974 (Cth) (TPA), misleadingly renamed the Competition and Consumer Act 2010 (Cth), is a statutory, not a general one: see also Watts v Australian Postal Commission (2014) 222 FCR 220 at 284-285 [281]-[282] per Mortimer J. In Murphy v Overton Investments Pty Ltd (2004) 216 CLR 388 at 407 [44] (and see Wyzenbeck v Australasian Marine Imports Pty Ltd (2019) 272 FCR 373 at 390-391 [68]-[69]), Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ said that it was wrong to approach the provisions in Pt VI of the TPA, such as ss 82 and 87, that dealt with remedies for contravention of that Act, "by beginning the inquiry with an attempt to draw some analogy with any particular form of claim under the general law" (216 CLR at 407 [44]). They observed that the primary task of the Court in relation to a claim for a statutory remedy under Pt VI of the TPA was to construe the relevant provisions in the legislation and that (at 407 [44]-[45]):
In the present case, analogies with the tort of deceit appear to have led to an assumption, at least at trial, that a person can suffer only one form of loss or damage as a result of a contravention of Pt V of the Act.
The Act's references to "loss or damage" can be given no narrow meaning. Section 4K of the Act provides that loss or damage includes a reference to injury. It follows that the loss or damage spoken of in ss 82 and 87 is not confined to economic loss [Marks (1998) 196 CLR 494 at 513 [46], per McHugh, Hayne and Callinan JJ; at 526-527 [93]-[96], per Gummow J]. What kinds of detriment constitute loss or damage, when a detriment is to be identified as occurring or likely to occur, and what remedies are to be awarded, may all raise further difficult questions. Especially is that so when it is recalled that remedies may be awarded to compensate, prevent or reduce loss or damage that has been or is likely to be suffered by conduct in contravention of the Act.
(emphasis added)
91 In Wyzenbeck 272 FCR at 392-393 [74]-[76], Rares, Burley and Anastassiou JJ distilled the following principles apposite to statutory remedies for compensation for loss or damage, that apply here to remedies for unlawful discrimination that s 46PO(4) of the AHRC Act provides, saying:
The High Court has repeatedly denied that the loss or damage recoverable under ss 82 and 87 for a contravention of s 52 of the TPA and their analogues is constrained by analogies to remedies available under the general law. In particular, since the decision in Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494, in an appropriate case, a person may recover loss or damage that is causally connected to a contravention of the statutory norm of conduct expressed in s 52: see e.g. Kenny & Good Pty Ltd v MGICA (1992) Ltd (1999) 199 CLR 413 at 459-461 [123]-[129] per Kirby and Callinan JJ with whom Gummow J agreed on this point at 449 [93]; I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109 at 121-122 [33] per Gleeson CJ; at 128-129 [58] per Gaudron, Gummow and Hayne JJ; at 142-144 [106]-[110] per McHugh J; 179-180 [220] per Callinan J.
In I & L Securities 210 CLR at 130 [62] Gaudron, Gummow and Hayne JJ said (see too at 128 [57]; and also at 121 [33] per Gleeson CJ; at 135-138 [84]-[93] per McHugh J; and at 175 [210] per Callinan J):
As was recognised in Henville v Walker [(2001) 206 CLR 459 at 474 [35], per Gleeson CJ; at 481-483 [65]-[72], per Gaudron J; at 493 [106], per McHugh J; at 507 [153], per Gummow J; at 510 [166], per Hayne J], there may be cases where it will be possible to say that some of the damage suffered by a person following contravention of the Act was not caused by the contravention. But because the relevant question is whether the contravention was a cause of (in the sense of materially contributed to) the loss, cases in which it will be necessary and appropriate to divide up the loss that has been suffered and attribute parts of the loss to particular causative events are likely to be rare. Further, it is only in a case where it is found that the alleged contravention did not materially contribute to some part of the loss claimed that it will be useful to speak of what caused that separate part of the loss as being "independent" of the contravention.
(bold emphasis added)
Gleeson CJ identified the reason that it is sufficient to attract the remedial provisions in ss 82 and 87 if the misleading conduct in contravention of s 52 is a cause of the injured party's loss or damage in I & L Securities 210 CLR at 121-122 [33] (and see too at 129-130 [60]-[61] per Gaudron, Gummow and Hayne JJ; 138 [91]-[92] per McHugh JJ; and 179-180 [220] per Callinan J) as follows:
The relevant purpose of the statute was to proscribe misleading and deceptive conduct in circumstances which included those of the present case. In aid of that purpose, the statute provided for compensation, by an award of damages, to a victim of such conduct. The measure of damages stipulated was the loss or damage of which the conduct was a cause. It was not limited to loss or damage of which such conduct was the sole cause. In most business transactions resulting in financial loss there are multiple causes of the loss. The statutory purpose would be defeated if the remedy under s 82 were restricted to loss of which the contravening conduct was the sole cause.
(emphasis added)
92 While the AHRC Act and s 46PO, in particular, are not in the same terms as those in the Competition and Consumer Act, the principles that Gleeson CJ identified in I & L Securities 210 CLR at 121-122 [33] are apposite to the construction of s 46PO(4). This is so because the purpose of s 46PO(4) is to provide remedies for contraventions of statutory norms of conduct that the Parliament established in, among other enactments, the DDA and SDA and to give effect to the policies articulated in the objects of those Acts. And, so long as the proscribed conduct of unlawful discrimination was a cause of the loss or damage suffered by a person in Ms Friend's position, the Court can order the respondent to pay "damages by way of compensation for any loss or damage suffered because of the conduct of the respondent". As Henville v Walker (2001) 206 CLR 459 established in cases under the Competition and Consumer Act, the applicant is entitled to recover his, her or its entire loss or damage, even if the applicant had been contributorily negligent in incurring it. Thus, the statutory measure of damages in s 46PO(4)(d) is not the common law measure. Rather, that section is addressed to remedy a contravention of a statute.
93 Once it is appreciated that the Parliament intended the remedies in s 46PO(4) of the AHRC Act for contravention of the DDA and SDA involving Commonwealth employees (although, as I have noted above, the SDA might not apply to the AFP) were outside the scope of the operation of s 44(1) of the SRCA, it is difficult to see a policy reason for adopting a construction of the word "damages" when used in the SRCA to include the remedy in s 46PO(4)(d) for conduct that, itself, is able to be litigated by a Commonwealth employee against his or her employer for unlawful discrimination. The Parliament is unlikely to have intended that the special remedy of damages in s 46PO(4)(d) for commonplace reactions to unlawful discrimination, such as depression and anxiety caused by bullying, sexual harassment or discrimination on the basis of disability or sex, to be denied by the effect of s 44(1) of the SRCA. Emotional trauma is a likely consequence of unlawful discrimination and that trauma can manifest in many ways including in a personal injury to a person of the kinds Ms Friend complained of.
94 I reject Comcare's argument that s 48 of the SRCA is intended to apply to any remedy for "damages". Crucially, s 48(1) is intended to prevent double recovery or "double dipping". That begs the question as to what the second dip is. It must be in respect of the causes of action or other proceedings for damages that s 44(1) provides do not lie against a Commonwealth employer in respect of an injury sustained by an employee in the course of which the employer would be liable (including vicariously) for damages. The DDA and SDA create just such causes of action for employees against their Commonwealth employers. Moreover, the DDA was enacted after the SRCA yet the Parliament did not limit the remedies under s 46PO(4) of the AHRC Act to "loss or damage suffered because of conduct of the respondent" by excluding injury within the meaning of the SRCA.