Human Rights and Equal Opportunity Commission Act 1986

Sex Discrimination Act 1984

Federal Magistrates Court Rules 2001

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Hall v A & A Sheiban Pty Ltd [1989] FCA 72; (1988) 20 FCR 217

Elliott v Nanda & Commonwealth (2001) FCA 418

Leslie v Graham (2002) FCA 32

Font v Paspaley Pearls (2002) FMCA 142

Wattle v Kirkland (No.2) (2002) FMCA 135

R v Equal Opportunity Board; Ex Parte Burns [1985] VicRp 31; (1985) VR 317

Aldridge v Booth [1988] FCA 170; (1988) 80 ALR 1

Mayer v Australian Nuclear Science and Technology Organisation (2003) FMCA 209

Gray v Motor Accident Commission (1998) HCA 70

Uren v John Fairfax and Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118

Harris v Digital Pulse [2003] NSWCA 10; (2003) 197 ALR 626

Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497

Walter v All Tools (1944) 61 TLR 39

Nye v New South Wales (2004) Aus Tort Reports 81-725

De Alwis v MIMIA (2004) FCAFC 77

Colgate-Palmolive v Cussons [1993] FCA 536; (1993) 46 FCR 225

Re: Wilcox; Ex parte Venture Industries Pty Ltd (1996) 141 ALR 727

Shiels v James (2000) FMCA 2

Triggell v Pheeny (1951) CLR 497

Walter v All Tools (1944) 61 CLR 39

Nye v New South Wales (2004) Aus Tort Reports 81-725

Bennett v Everitt (1988) EOC 92-244

Kiel v Weeks (1989) EOC 92-245

Horne v Press Clough Joint Venture (1994) EOC 92-556

Doyle v Riley (1995) EOC 92-748

Bebbington v Dove (1993) EOC 92-545

Hawkins v Malnet Pty Ltd (1995) EOC 92-767

G v R & Department of Health and Community Services (unreported, HREOC, 17 September 1993)

Djokic v Sinclair [1994] HREOCA 16; (1994) EOC 92-643

Hill v Water Resources Commission (1985) EOC 92-127

Freeshore v Kozma (1989) EOC 92-249

Hughes (formerly De Jager) v Car Buyers Pty Ltd & Ors [2004] FMCA 526

GLEN STRAITS PTY LIMITED trading as THE EXCHANGE HOTEL

(1)

That Glen Straits Pty Ltd trading as the Exchange Hotel and Martin Brindley pay to the applicant the sum of $15,000.00 within 28 days.

(2)

That both Glen Straits Pty Ltd trading as the Exchange Hotel and Martin Brindley provide a written apology to the applicant within 28 days, such apology to be in terms to be agreed between the parties or, if they cannot agree, to be approved by the Court in chambers.

(3)

That the liability of Glen Straits Pty Ltd trading as the Exchange Hotel and Martin Brindley pursuant to paragraphs 1 and 2 above be joint and several.

GLEN STRAITS PTY LIMITED trading as THE EXCHANGE HOTEL

The applicant, Ms Kylie Frith, began work with Glen Straits Pty Ltd trading as the Exchange Hotel ("Exchange Hotel") on 21 August 1998. Her constructive resignation was effected on the evening of Sunday

23 August 1998 when the alleged events concerning the basis of her complaint as to sexual harassment arose. She alleges that she was sexually harassed and discriminated against during the two day period that she worked for the Exchange Hotel in Mossman in far North Queensland.

The first respondent, the Exchange Hotel, is a company. It cannot, itself, sexually harass anybody. However, its directors, employees and agents can, and it can be held responsible for their behaviour, exactly as if it had done the acts complained of.

The second named respondent, Mr Brindley, was a director and shareholder of the company who trades as The Exchange Hotel when Ms Frith worked for it. His wife, Betty Brindley, was the other director and shareholder of the company but at the time of the hearing, Mr Brindley was the sole director of the company.

It is Ms Friths' case that Mr Brindley sexually harassed and discriminated against her. It is also her case that the actions of Mr Brindley have profoundly affected her.

On 15 January 1999, Ms Frith lodged a complaint against Glen Straits Pty Ltd and Mr Brindley under the Human Rights and Equal Opportunity Commission Act 1986 ("HREOCA"), alleging sexual harassment in employment under the terms of the Sex Discrimination Act 1984 ("SDA").

By notice dated 13 April 2000, the Human Right and Equal Opportunity Commission ("HREOC") terminated the complaint pursuant to section 46PH(1)(i) of the HREOCA, as the Commission was satisfied that there was no reasonable prospect of the matter being settled by mediation.

On 17 May 2000, Ms Frith filed an application in the Federal Court of Australia. She was entitled to do so pursuant to the provisions of section 46PO of the HREOCA. The application alleged that the respondents (being the Exchange Hotel and Mr Brindley):

"...breached the Sex Discrimination Act 1984 and discriminated and sexually harassed (Ms Frith) during her employment with The Exchange Hotel."

The information sheet filed with the application reveals that Ms Frith was relying upon the provisions of the SDA. She sought compensation from the respondents.

At the hearing, she was questioned about why she had not requested an apology from Mr Brindley. She gave evidence that she had followed legal advice about what to seek at that time but that as part of any orders that may be made by the Court with respect to her application, she would certainly seek an apology from Mr Brindley.

The respondents were served with the application and they have filed a joint defence to this application which denies the allegations of sexual harassment.

In this matter I have considered all of the affidavits filed by each of the parties and their witnesses. All relevant witnesses were cross-examined. Given the influx ion of time since the hearing, I have also had careful regard to the transcript of all evidence. I have had regard to all exhibits in the proceedings.

What facts does the applicant rely upon to establish her claim?

The witnesses called on behalf of the applicant at the hearing were herself and the bar manager of the Exchange Hotel at the relevant time, Ms Carol Emmett.

I was impressed by Ms Frith as a truthful witness in most instances and I accept her evidence except for matters to which I will expressly refer to in these reasons. I was not impressed that Mr Brindley was a truthful witness on matters touching upon the events that occurred on Sunday 23 August 1998, those being the events that occurred once he and Ms Frith left the Exchange Hotel to travel to Cairns. I will refer to elements of his evidence which have led me to this conclusion.

I had no reason not to accept the evidence of Ms Emmett, or the evidence of Ms Greenland and Mr Pronk who were two of the employees of the Exchange Hotel who travelled to work at the Exchange Hotel in August 1998, at the same time as Ms Frith. I only observed that their memories of some specific matters seemed stretched, as is to be expected, by the effluxion of time and the fact that they were persons on the periphery of these events.

I formed the view that Mrs Betty Brindley was giving evidence that was supportive of and consistent with the evidence of her husband. As Mr Brindley's wife, and given the fact that she is the other director and shareholder of Glen Straits Pty Ltd, the company that operates the Exchange Hotel which is, in effect, this couples' asset and source of income, she is clearly not in any sense an independent witness in this determination. However, her evidence as it is relevant in this decision was not really in any way contentious.

Ms Friths' evidence in relation to the events at the Exchange Hotel, then in the journey down to Cairns with Mr Brindley in his vehicle and then whilst she and Mr Brindley were in Cairns was as follows:

a) Ms Frith responded to an advertisement for a senior bar attendant at the Exchange Hotel, Mossman in early August 1998;

b) Ms Frith attended an interview with a director of the company that operates the Exchange Hotel (Glen Straits Pty Ltd) Mr Martin Brindley on about 10 August 1998;

c) As a result of that interview, Ms Frith was employed as a senior bar attendant, which provided for a salary of $420.00 for a 30 hour week;

d) Ms Frith travelled with Mr Brindley and other employees who had been hired to Mossman to take up this position on 21 August 1998;

e) Ms Frith was required to live on-site at the Exchange Hotel in Mossman and when she arrived at the hotel she was shown a room which had a common bathroom;

f) On the evening of 21 August 1998, all of new employees went into the bar area of the hotel and were drinking together and with Mr Brindley;

g) Late on that Friday night, 21 August 1998, Ms Frith received a telephone call and was informed that an auntie of hers had died. There is no dispute that she was deeply shocked and distressed upon receiving this news. Ms Frith had at that time partaken of a disputed amount of alcohol;

h) Ms Frith says that on that evening Mr Brindley offered her some comfort and as she was upset suggested to her that she go upstairs with him and continue to drink in the room. Ms Frith says that she declined that offer as she did not think it was appropriate;

i) Ms Frith accepts that she was then drinking with some of the local customers of the hotel and later went with them outside and smoked some marijuana away from the Hotel premises;

j) Ms Frith states that on the following morning she spoke with Mr Brindley and asked if she could start to do some work behind the bar in order to keep herself occupied, which she did;

k) She says that after she finished her work she went with other staff members, Ms Greenland, Mr Rooney and Mr Pronk down the street and had some lunch and that during lunch she discussed with Ms Greenland and the others that she would like to travel back down to the Sunshine Coast to attend her aunt's funeral;

l) Ms Frith says that later that day she had a conversation with Mr Brindley about the death of her aunt and how she might best make arrangements to get home and that she then made enquiries about catching a bus to the Sunshine Coast from Cairns;

m) Ms Frith says that once the bus tickets were confirmed on the morning of Sunday 23 August 1998, Mr Brindley agreed to cash a tax cheque she had through the Exchange Hotel and advised her that there were no buses from Mossman to Cairns but that he would be able to drive her to Cairns on that Sunday afternoon as he needed to drive to Cairns before Monday 24 August 1998. She advised him that her bus ticket needed to be paid for before 5.00 p.m. on Sunday 23 August in order to secure a place on the bus leaving Cairns on the following day;

n) Ms Frith says that Mr Brindley returned her tax cheque to her before they left Mossman and stated that she should pay him for the ticket when she returned to Mossman or alternatively he would deduct the amount from her wages;

o) On that afternoon of 23 August, Ms Frith states that Mr Brindley drove her to Cairns and on the journey he asked her a lot of personal questions regarding her personal life including whether she had a boyfriend, questions about her sex life and relationships with her ex-boyfriends. She states that he talked about his personal life and told her she was a hard person to reach. She says that she did not talk to Mr Brindley very much on the drive to Cairns as she was distressed and suffering a great deal of grief and sadness as a result of the death of her aunt, whom she was very close to. She states that as they drove past the Novotel Hotel in Cairns Mr Brindley told her that he had once hired prostitutes and taken them to that hotel. He also informed her about some girls who had hurt him in the past. She says that when she was not very responsive to him he again told her that she was a hard person to reach;

p) Ms Frith says that when they arrived in Cairns she asked Mr Brindley if he could advise her of a good place to stay in Cairns that would not be too expensive and he told her that he always stayed at the Lyons Hotel and that she was not to worry as he would make all of the arrangements. He told her that she could pay him back later when she returned to the Exchange Hotel;

q) Ms Frith says that, when they arrived at the Lyons Hotel, Mr Brindley went inside to book the accommodation and she got the bags from the car. When she came inside with the luggage she says that Mr Brindley told her there was only one room left available and that it was a room with separate beds and he suggested that she share the room with him. She says that she was a little disappointed but there was nothing else that she could do but agree to this arrangement. She said that it did not cause her concern as the staff members had all shared a room on the journey up to Mossman and that the living arrangements at the Exchange Hotel were basically shared;

r) Ms Frith states that they then went out and had a drink before having dinner together. It is her evidence that they returned to the room they were sharing at the Lyons Hotel and were in their separate beds with the lights out when Mr Brindley told her that she was perfect for the job but she would have to please him personally as well as professionally as he was a man of power who had to have his needs met;

s) Ms Firth gives evidence that she recalls telling Mr Brindley that it was against the law for an employer to require an employee to please him sexually and she reminded him that he was married with a son not much younger than her. She says that he responded by saying age did not matter and that there was no law prohibiting him from making those suggestions. He said that she was being immature and if she wanted the job she had to have sex with him as he was a human and needed taking care of. She alleges in her evidence that Mr Brindley said words to the effect that if she did not have sex with him, that she could not work for him;

t) It is Ms Frith's evidence that she was horrified by his words and that she grabbed her bag and ran out of the bedroom while still wearing her pyjamas. She says that the effect of this upon her was that she was very angry, very upset and felt extremely vulnerable. She says that the feelings of vulnerability were already there because of the death of her aunt and she felt Mr Brindley had taken advantage of her;

u) Her evidence is that after leaving the hotel room she went straight down to the lobby of the hotel feeling upset, confused and lost. There she met two men who were in the lobby at the reception area, a Mr James Stewart and a Mr Werner, and she advised them what had happened. She says that they unlocked a toilet for her and she was able to change out of her pyjamas;

v) Ms Frith states that she immediately telephoned the Exchange Hotel and spoke with Ms Emmett, one of the managers and advised her what had happened. She was advised to telephone Ms Betty Brindley and tell her about this sexual harassment by Mr Brindley;

w) It is her further evidence that she telephoned Mrs Brindley and she was upset and crying. She was asked by Mrs Brindley to calm down and tell her what had happened. She recalls that Mrs Brindley was at first silent and then told Ms Frith that she was just as hurt and shocked as Ms Frith was. Ms Frith says that Mrs Brindley then handed the telephone to her son and that she spoke to him. She says that she then explained what had happened to the son and was asked questions by him about the time, the place and other details of the incident. She says that she had to ask Mr Werner and Mr Stewart some of the details, such as the time that she had come to the lobby. She says that Mrs Brindley then came back onto the telephone and told her she was falsely accusing Mr Brindley, that she was to book another room at the Lyons Hotel and that Mrs Brindley would telephone her back after she had spoken to Mr Brindley;

x) Ms Frith says that, although there were other rooms available upon her enquiry, she did not wish to remain there as she did not wish to speak to or see Mr Brindley again. She then decided she would walk to the bus stop and wait there. She felt unsafe at the bus stop and was upset, tired and angry so she telephoned the police station and was told that she should come down to the station but that they could not arrange for a police car to collect her;

y) Ms Frith states that she then started to walk to the police station but the streets were very dark. She asked for directions at a service station and was given directions by the man at the service station who ordered a taxi for her. She said that she then took the taxi to the police station;

z) Ms Frith says that the police told her that there was nothing that they could do as no criminal offence had been committed but they gave her the number for the Human Rights and Equal Opportunity Commission and told her that she could stay on the couch at the police station, which she did. Once it was light, the police drove her to the bus depot where she cancelled her return ticket and caught the bus to the Sunshine Coast;

aa) Ms Frith says that, on 28 August 1998, she telephoned Mrs Brindley in relation to obtaining her luggage from the Exchange Hotel as she was not returning. She was told by Mrs Brindley that she had made a very big mistake and it was rude of her to accuse Mr Brindley. She was told by Mrs Brindley that she was a very silly girl and should consider herself lucky that Mr Brindley would arrange to send her luggage to her. She says that Mrs Brindley also told her that she was recording the telephone conversation. Ms Frith says that by the 10 September 1998 her luggage had still not been returned to her, so she telephoned Mrs Brindley again and was told that she did not know what had happened to her luggage and queried why she should help her so Ms Frith terminated the call;

Ms Friths' evidence in relation to the financial arrangements for her employment at the Exchange Hotel was as follows:

a) Ms Frith was paid a weekly net wage of $355.00, plus accommodation. As a result of the events that occurred she did not remain at this employment for a period sufficient to be paid at all;

b) Her evidence is that in addition to her duties in the bar at the Exchange Hotel, she was to assist with some redecorating needed at the Hotel.

In relation to the events following her employment at the Exchange Hotel, Ms Friths' evidence was as follows:

a) After resigning from the Exchange Hotel, Ms Frith was unemployed from September 1998 until May 2001;

b) In May 2001 she commenced employment in the childcare section at Byron Gymnasium;

c) This employment was for 8 hours a week at a rate of $13.50 an hour. Her evidence is that she has been unable to continue in that employment since July 2001;

d) Since that time she has had approximately three jobs which have lasted less than a week;

e) She is presently unemployed.

Ms Frith says that, prior to the incident in August 1998, she consistently had employment with different entities and a range of employment positions within the hospitality industry. In her evidence-in-chief she provides no details about such prior employment such as the names of employers, the positions held or the income earned in such positions.

When cross-examined, Ms Frith gave evidence that her prior employment consisted of the following positions:

a) That in either 1990 or 1993 she worked in Sydney as a nanny for approximately two years, in one position as a live-in nanny and in another position as a live-out nanny;

b) After that, she had a position with a car washing business called Young Aussie for a very short time in Newcastle. She said she was only there for a few months as she had been offered a position at Megamania at Cardiff and was waiting for this to open;

c) She then stated she worked as the co-ordinator of children's activist at Megamania, which is a children's activity centre in Cardiff, for about 6 months in 1997. She was asked to leave this employment as they employed someone younger to do the job;

d) Thereafter she was unemployed except for undertaking approximately a month of employment with Program 2000 which involved her in door-to-door sales for children's encyclopaedias and she did this for about a month prior to travelling up to the Sunshine Coast;[1]

e) Thereafter she was unemployed for about a month and obtained the position at the Exchange Hotel.

As to the consequences of the events described above, Ms Friths' evidence was as follows:

a) Ms Frith "felt scared, angry, distressed and vulnerable" at the time of the incident and shortly thereafter;

b) After the incident, she has suffered a number of problems including anxiety, insomnia, paranoia, avoidance of relationships and authority figures, fluctuating mood swings and she has an ongoing negative self image;

c) After the incident she increased her alcohol intake to levels that were dangerous. She says that for 12 months after the incident she was "suicidal in my drinking";

d) She attended briefly at a drug and alcohol rehabilitation centre in Orange in New South Wales in 1999 before then attending the Buttery Rehabilitation Centre on 30 September 1999. She remained in that Centre obtaining treatment until 29 May 2000;

e) Prior to the incident in August 1998, Ms Frith acted in the voluntary position of Environment Consultant for Girl Guides Association of Australia Ltd and was involved in setting up programs for them to use throughout Australia. In this capacity she travelled to India to represent Australia for one month in 1997;

f) Ms Frith consulted with Dr Ian Hayes, a psychiatrist, who assessed her on 17 May 2000 whilst she was at the Buttery Rehabilitation Centre. She again consulted with Dr Hayes in his rooms at Bangalow on 6 July 2001 after she had completed the drug and alcohol rehabilitation;

g) The events described above have made her avoidant of relationships and attending any social occasion at "pubs";

h) She has not been able to obtain employment due to her treatment and the severity of her symptoms;

i) Ms Frith's "confidence has been adversely affected". She finds that she cannot trust people;

j) Ms Frith finds herself "constantly thinking about" the events that occurred;

k) Ms Frith experiences envy, jealousy and resentfulness when other people plan trips to pubs or talk about visiting North Queensland.

Ms Frith was cross-examined extensively at the hearing and her credibility is put into question by the respondent.

Ms Emmett's evidence was as follows:

a) She first met Ms Frith when she arrived at the Exchange Hotel on 21 August 1998. She was one of the managers of the Exchange Hotel at that time. She recalls that Ms Frith had been working at the Hotel for about a week when the incident happened;

b) She found Ms Frith to be a nice girl and became aware that on the first night that Ms Frith was there she received news that her aunt had died. She was working behind the bar on that first night. She was aware that Mr Brindley and all of the new staff he had brought up to Mossman were drinking with him. She stated in her affidavit of evidence-in-chief that she recalled that Mr Brindley plied Ms Frith with alcohol;

c) Ms Emmet recalls that arrangements were made for Ms Frith to travel with Mr Brindley to Cairns on Sunday 23 August 1998 so she could then get a bus to Brisbane from there;

d) Ms Emmett says that in the early hours of the morning on Monday 24 August 1998 she was asleep and received a telephone call from Ms Frith. She states that this would have been between 1.00 and 2.00 a.m. She states that Ms Frith was distraught and told her that Mr Brindley had booked one room at the Lyons Hotel at Cairns and had said words to the effect "if you don't sleep with me, you don't have a job". She recalls that Ms Frith was extremely upset and that she advised Ms Frith to go to the police station in Cairns and lodge a complaint;

e) Ms Emmett says that she also advised Ms Frith to telephone Martin Brindley's wife to explain what had happened;

f) Ms Emmet says that she had a second call with Ms Frith for the purpose of providing her with Mrs Brindley's phone number;

g) Ms Emmett states that she subsequently received a telephone call from Martin Brindley's son asking what was going on and that she explained to him what Ms Frith had related to her;

h) Ms Emmett was employed at the Exchange Hotel for approximately 19 months and she and her partner and co-manager had left that employment suddenly and without notice after a dispute which had occurred between her partner and Mr Brindley which she did not witness;

i) Ms Emmett states that she spoke to Mrs Betty Brindley on one occasion and told her that she was tired of sexual harassment at the Exchange Hotel and that one of the reasons that she left her employment at the Exchange Hotel was the ongoing sexual harassment complaints made against Mr Brindley;

j) Ms Emmet says that she recalls that Mr Brindley was often making suggestions of a sexual nature and that on the first day she started employment at the hotel, Mr Brindley "kissed" her but she did not encounter any other similar acts on that day. She described Mr Brindley as a "womaniser".

Ms Emmett was cross-examined and her credibility was questioned by the respondent.

The evidence of Dr Hayes, a psychiatrist who was called by the applicant as a witness, was as follows:

a) He assessed Ms Frith on two separate occasions, firstly on 17 May 2000 and secondly on 6 July 2001;

b) From his first assessment of Ms Frith, it is his expert opinion as follows:

i)

It appears that the impact of this incident on Ms Frith is severe;

ii)

Her bouts of heavy drinking would have been a risk to her physical health and would have damaged her reputation;

iii)

She has lost her confidence and has a reasonably low self image compared to her description of herself prior to the event;

iv)

She continues to be troubled with symptoms of avoidance, over-arousal and intrusion which are handicapping her both socially and in the workplace;

v)

She has been unable to work since her experience and will undoubtedly have difficulty establishing herself in the hospitality industry until she has put this traumatic experience behind her;

vi)

Her maladaptive drinking behaviour has resulted in her spending nearly nine months in a rehabilitation centre;

vii)

To date her recovery has been slow;

viii)

Her alcohol abuse appears to have been an exacerbation of a tendency to drink to excess, which was present previously and that her vulnerability to alcohol has been exposed and will remain a potential threat to her future well-being;

ix)

That Ms Frith appears to be a capable and intelligent woman who should be able to recover from her traumatic experience;

k) In his assessment of Ms frith on 6 July 2001, Dr Hayes expresses his opinion as follows:

i)

Ms Frith has completed her drug and alcohol rehabilitation and is now living in the community. Since her discharge from The Buttery some 12 months earlier she has had one relapse only, and had been sober for 9 months;

ii)

Ms Frith continues to be troubled by her symptoms described in his earlier report and that her symptom intensity is currently increasing and that this is attributable to imminent Court case and time she has spent on it's preparation;

iii)

Ms Frith continues to have symptoms of over-arousal. She sleeps poorly with a one-to-three sleep latency. She sleeps lightly and wakes unrefreshed after a maximum of five hours sleep. She is jumpy, angry and irritable and there may be an enhanced startle response;

iv)

Ms Frith has intrusive recall of her events in Mossman and Cairns;

v)

Her appetite is good, her concentration is variable and she keeps herself busy but is unable to relax;

vi)

Ms Frith continues to avoid pubs, has been unable to have any enduring relationship and in her more recent relationship was unable to cope with sexual activity feeling that she was in some dirty and a prostitute;

vii)

Ms Frith has been unable to continue with work and that after several months of working in a creche in a local gymnasium she felt herself increasingly over-aroused and anxious, for example having thoughts that when toileting the children that people will think she is sexually abusing them;

viii)

He would anticipate that her symptoms would abate following the Court case as this is a trigger and reminder of the events in the past, however she is likely to continue to have some difficulty, particularly as she is eager to adhere rigidly to her recovery programme, which may limit her full range of treatment options;

ix)

He would anticipate that she will be able to return to the workforce in the future but that due to the duration and severity of her symptoms, they may well be with her for many years to come and she remains liable for relapse of any alcohol related problems.

I am satisfied that based upon the information that Ms Frith has provided to Dr Hayes that all of his medical opinions must be accepted. There is no evidence put before me to the contrary.

Which facts does the respondent dispute and how is that done?

The witnesses called on behalf of the respondents were:

• The second respondent, Mr Martin Brindley;

• Mrs Betty Brindley;

• Ms Jackie Greenland; and

• Mr Dirk Pronk.

Ms Greenland and Mr Pronk were two of the employees of the Exchange Hotel who travelled to work at the Exchange Hotel in August 1998, at the same time as Ms Frith. All of the above witnesses were cross-examined at the hearing.

Mr Brindley denies each and every allegation made by Ms Frith of sexual harassment. He emphatically denies that:

• He made any inappropriate suggestions to Ms Frith on the evening of 21 August 1998 when he was comforting her in relation to her distress as a result of her aunt's death such as suggesting that they go upstairs and continue to drink there;

• He made any inappropriate personal comments to Ms Frith in relation to her past boyfriends, of a sexual nature or about his personal life in the car journey from Mossman to Cairns on Sunday 23 August 1998;

• He "forced" Ms Frith to share a room with him and states that this was done on her request and not on his suggestion;

• He ever suggested to Ms Frith that she would be required to have sex with him either that evening or whilst she was working with him.

Mr Brindley gives evidence that he gave Ms Frith assistance in circumstances whereby he held reservations about whether she was suitable for the job he had employed her to do, because she was dishonest given the death of her aunt.

Mr Brindley's evidence is that Ms Frith had borrowed money from him on the trip up to Mossman in the sum of $40.00. He further states when he and the new staff arrived in Mossman on 21 August 1998 they went to the local grocery store to buy groceries and he paid for Ms Frith's groceries in the sum of $50.00.

Mr Brindley further states that on the first night at Mossman he had drinks in the Exchange Hotel with all of the new staff including Ms Frith and that Ms Frith received news that her aunt had passed away. He was requested by Ms Greenland to assist Ms Frith as she appeared quite distressed. He says that later that evening she was drinking with some of the locals and that she was verbally abusive to Ms Greenland and was creating a nuisance of herself in the hotel. He says at approximately 10.00 p.m. he requested that she go upstairs but that she refused. He denies that he made any suggestion that she go upstairs and drink with him at that time.

Mr Brindley gives evidence that at about midnight that same evening when they were about to close the hotel, he went to look for Ms Frith. He states he found her very drunk and sleeping on the footpath in front of the hotel so he assisted her to her feet and had to almost drag her to her room whereupon he placed her on her bed and left the room.

Mr Brindley states that the following day he spoke to Ms Frith concerning her behaviour the night before as it was clear she had been smoking drugs with the locals and drinking to excess. He says that Ms Frith confirmed that she did take drugs and regardless of what he said "she intended to continue to do so". He says that he advised her that he did not consider her suitable for the job and it was during that conversation that Ms Frith told him that she had drug and alcohol problems and had been in drug rehabilitation. He said he felt sorry for her and because it was obvious that she had been affected badly by her aunt's death he told her he was prepared to give her another chance.

Mr Brindley says that later on that Saturday Ms Frith approached him and requested some time off to attend her aunt's funeral and that they had a discussion about the feelings of loss and her close relationship with her aunt. Ms Frith informed him that she would like to attend her aunt's funeral and requested that he book her a plane ticket from Cairns to the Sunshine Coast, which he then did. He said he learned from other staff that Ms Frith had a tax refund cheque that she was trying to cash.

Mr Brindley states that on the following day, Sunday 23 August 1998, Ms Frith asked him if he would provide her with the money for her airfare and then she would sign her tax refund cheque over to him. As the cheque was not sufficient to cover that fare, he refused. He says it was at this point that she became upset and he suggested she travel to the funeral by bus as it would be cheaper. He then says he telephoned the coach company on her behalf and ascertained a coach was scheduled to leave Cairns at 7.15 a.m. on Monday 24 August 1998 and that she needed then to pay the fare by 5.00 p.m. on Sunday at the McCafferty's bus depot in Cairns.

It is Mr Brindley's evidence that later that day Ms Frith again came to him and she was most upset as she could not find someone to drop her to Cairns. Because of the fact that he was required to go to Cairns on the following day, Monday 24 August 1998, he agreed to drive Ms Frith to Cairns by 5.00 p.m. to collect her ticket.

Mr Brindley says that they left Mossman at 3.30 p.m. and he and Ms Frith drove in his vehicle to Cairns. He states that when they were driving to Cairns Ms Frith told him that she was unable to pay for her ticket and again offered to sign her tax refund cheque over to him. He says he felt that he had little option but to agree. He denies any questions were asked by him of Ms Frith's personal life and he did not share details of a personal nature with her.

Mr Brindley says that during the journey to Cairns, Ms Frith asked him where he was staying and how much accommodation would cost. He says he told her he always stayed at the Lyons Hotel and it cost about $100.00 a night. He says that later in that same car journey Ms Frith asked if she could stay in the same room as him and she would pay half the cost of the accommodation. He says that as they had shared accommodation in Ayr it did not occur to him that sharing accommodation with her would present any difficulties so he agreed.

Mr Brindley states that on arriving at the bus depot in Cairns he paid for Ms Frith's bus ticket but that when he asked for the tax cheque she said she would give it to him later. He says they then went and booked a room with separate beds at the Lyons Hotel. He denies that he "forced" Ms Frith to share a room with him and did not make any inquiry as to whether the hotel had other rooms available.

Mr Brindley gives evidence that he and Ms Frith then shared dinner, which he paid for and that during dinner Ms Frith was discussing her personal life and telling him that she had nothing and that he had everything. He said she discussed with him about communicating with the dead and with her dead aunt.

He says that after sharing dinner they walked along the Esplanade towards the hotel and Ms Frith suggested they have a drink as she wanted a drink to help settle her down. He says that they did this at the Market Place Bar and left there at approximately 11.30 a.m. that evening. It is his evidence that while they were drinking he again asked her for her tax refund cheque and Ms Frith told him she would give it to him when they returned to the Lyons Hotel.

Mr Brindley states that when they returned to the room at the Lyons Hotel he changed and got into bed and after he was in bed he again asked Ms Frith for the tax refund cheque. He says Ms Frith initially pretended to be asleep but that she then responded and asked him if he would give her some money for food and drinks but he said no and again asked her for her tax cheque. He states Ms Frith then became very angry and said he had plenty of money and she needed her tax cheque and an argument ensued. He says that he recalls telling Ms Frith that she was using him and she was trouble. He says at that point Ms Frith grabbed her bag and left the room still in her pyjamas. He says he then eventually went to sleep.

His evidence is that at about 2.00 a.m. on Monday 24 August 1998, he received a telephone call from his wife who informed him that she had just received a telephone call from Ms Frith who had alleged that he had sexually assaulted her. She told him that Ms Frith was out of control and crying and had told his wife of the sleeping arrangements in the room. He denies that he has ever told Ms Frith that she would need to have sex with him if she wanted to work for him.

His evidence is that since that night he has not had any direct contact with Ms Frith but she had spoken to his wife on three or four occasions and that he had made arrangements to send Ms Frith's luggage from Cairns to Belmont in New South Wales at his cost.

Mr Brindley states that although he has been in the hotel and hospitality business for 18 years and for 30 years, this is the first and only complaint of this nature which has been made against him personally.

The respondent's wife, Mrs Betty Brindley, has advised that her knowledge of the alleged incident arose in the following way:

• That at approximately 2.00 a.m. on Monday 24 August 1998 she was asleep and was woken by her son who told her there was a telephone call from a Ms Frith who wished to speak to her;

• She said she can recall generally what Ms Frith said and that she advised her that "Martin had sexually harassed her";

• She recalls telling Ms Frith that her husband had never done anything like that before and that if she was so frightened that she would book herself into another room but Ms Frith told her she had to leave the hotel and said to her more than once "don't you believe me";

• She states she then immediately called the respondent at the Lyons Hotel in Cairns and told him what Ms Frith had said. She says Mr Brindley told him that Ms Frith had refused to repay him money he had loaned to her for a bus ticket and that when he insisted she became angry with him and stormed out of the room;

• She states that in the period of the 16 years that she and Mr Brindley have owned hotels in Queensland that no other complaint has been made against Mr Brindley of a sexual or other nature;

• She states that an earlier complaint referred to in Ms Emmett's evidence was made against the manager of the hotel at the time, Greg Harris, but that he had passed away before the matter had settled and as Mr Brindley was a director of the hotel, Mr Brindley was responsible for payment of the settlement of the claim in the sum of $500.00 [see Exhibit 4].

Both Ms Jackie Greensland and Mr Dirk Pronk gave evidence for the respondent. Their evidence went to the events they witnessed in the journey up from the Sunshine Coast to Cairns and in the Exchange Hotel on Friday 21 August 1998 and on Saturday 22 August 1998.

Ms Greenland and Mr Pronk were also employed to work at the Exchange Hotel and travelled to Mossman at the same time as Ms Frith and Mr Brindley, arriving on Friday 21 August 1998 at the hotel.

Ms Greenland's evidence was as follows:

• She recalled that Mr Brindley paid for Ms Frith's meals;

• Upon arrival at the hotel, Mr Brindley took her and Ms Frith grocery shopping, where Ms Frith allowed Mr Brindley to pay for her grocery items;

• Whilst at the Exchange hotel, Ms Frith received a telephone call. She then returned to the group and told Mr Brindley and herself that her aunt had passed away. Ms Frith was crying and Mr Brindley and Ms Greenland tried to calm her down but she became quite hysterical;

• Ms Frith went outside and Ms Greenland followed her. Ms Frith began punching and kicking a brickwall and a garbage bin. Ms Greenland tried to calm her down and was told to "go away or she would hit me". Ms Greenland then went back inside the hotel;

• Ms Greenland later went outside to whether if Ms Frith was okay. She observed Ms Frith down the road from the hotel with a few locals. She walked over to where they were sitting and smelled marijuana. She observed the applicant smoking a "joint" that was being passed around and returned to the hotel;

• The following morning, Ms Frith and Ms Greenland started work behind the bar at the Exchange Hotel where Ms Frith apologised to her for her behaviour the previous day. Ms Frith told Ms Greenland that she had asked Mr Brindley if he could pay for her to fly back to the Sunshine Coast for her aunt's funeral and that Mr Brindley had agreed to pay for the flight;

• Ms Greenland states that later that day, Mr Brindley drove the applicant to Cairns so she could catch the flight;

• Ms Greenland states that she has not spoken to the applicant since that day.

The evidence of Mr Pronk was as follows:

• On the evening of Friday 21 August 1998, after arriving at the Exchange Hotel, himself together with Ms Greenland, Mr Rooney and Mr Brindley had a drink at the public bar;

• Ms Frith refused to join their table;

• He noticed early on in the evening that the applicant was consuming an excessive amount of alcohol;

• He was told by Ms Greenland that Ms Frith had received a telephone call earlier that day advising that her aunt had passed away;

• He recalled Mr Brindley and Ms Greenland trying to comfort Ms Frith but that Ms Frith had wanted nothing to do with them and instead continued to drink with the locals;

• He states that the people at the table at which Ms Frith was drinking had consumed a large amount of alcohol at this stage and were becoming quite loud;

• He noted that the applicant would disappear from the hotel for long periods of time throughout the evening and recalled Mr Brindley going outside to look for her on occasion;

• As the evening progressed, Ms Frith became very loud and boisterous and was starting to bring attention to herself. He recalls Mr Brindley going over to her to speak to her and try to settle her down;

• He states he could tell from her eyes that Ms Frith was affected by marijuana, stated that she was "stoned" and could smell the marijuana on her clothes. He states Ms Frith had indicated to him during the evening that she had been smoking marijuana;

• During the evening, Mr Pronk states that the applicant became hysterical about the death of her aunt. He recalls Ms Greenland and Mr Brindley trying to settle her down on several occasions and that she became verbally abusive and aggressive and was making a scene in the hotel;

• He further recalls that during the evening he saw Mr Brindley give the applicant some money, he thinks it was a $50.00 note and a $20.00 note;

• He states that throughout the evening, the applicant said to him on more than one occasion that she was broke and did not have any money. He also recalled the applicant mentioning a tax cheque which she was going to try and cash in the next couple of days.

Section 28B of the SDA provides as follows:

(1) It is unlawful for a person to sexually harass:

(a)

an employee of the person; or

(b)

a person who is seeking to become an employee of the person.

(2) It is unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer.

(3) It is unlawful for a person to sexually harass:

(a)

a commission agent or contract worker of the person; or

(b)

a person who is seeking to become a commission agent or contract worker of the person.

(4) It is unlawful for a commission agent or contract worker to sexually harass a fellow commission agent or fellow contract worker.

(5) It is unlawful for a partner in a partnership to sexually harass another partner, or a person who is seeking to become a partner, in the same partnership.

(6)

It is unlawful for a workplace participant to sexually harass another workplace participant at a place that is a workplace of both of those persons.

(7)

In this section:

"workplace" means a place at which a workplace participant works or otherwise carries out functions in connection with being a workplace participant.

"workplace participant" means any of the following:

(a)

an employer or employee;

(b)

a commission agent or contract worker;

(c)

a partner in a partnership.

"Sexual Harassment" is defined in section 28A of the SDA as follows:

(1)

For the purposes of this Division, a person sexually harasses another person (the person harassed ) if:

(a)

the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or

(b)

engages in other unwelcome conduct of a sexual nature in relation to the person harassed;

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

"conduct of a sexual nature" includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.

Sections 28A and 28B of the SDA apply to Australian companies such as The Exchange Hotel.[2]

Section 106 of the SDA is as follows:

(1)

Subject to subsection (2), where an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent:

(a)

an act that would, if it were done by the person, be unlawful under Division 1 or 2 of Part II (whether or not the act done by the employee or agent is unlawful under Division 1 or 2 of Part II); or

(b)

an act that is unlawful under Division 3 of Part II;

this Act applies in relation to that person as if that person had also done the act.

(2)

Subsection (1) does not apply in relation to an act of a kind referred to in paragraph (1)(a) or (b) done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph.

Sections 28A and 28B are in Division 3 of Part II of the SDA.

The effect of section 106 of the SDA is to render the Exchange Hotel vicariously liable for Mr Brindley's acts (where such acts amount to sexual harassment under the SDA) as if the Exchange Hotel had also done the acts.

I accept the applicant's submission that the relevant elements for the purposes of section 28A are:

a) Conduct of a sexual nature;

b) The conduct must be unwelcome;

c) The person harassed is or would be offended, humiliated or intimidated by the conduct; and

d) Having regard to all the circumstances, a reasonable person would have anticipated that the person harassed would have felt this way.

The appropriate standard of proof to be applied in matters such as this is on the balance of probabilities - see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

The test here is objective and it does not matter whether the perpetrator intended to act in a sexual way or, indeed, was aware that he or she was acting in a sexual way. The type of conduct that has been held to be conduct of a sexual nature covers a wide range of circumstances: Bennett v Everitt (1988) EOC 92-244; Kiel v Weeks (1989) EOC 92-245; Horne v Press Clough Joint Venture (1994) EOC 92-556; Hooper v Mt Isa Mines (1997) EOC 92-879; Doyle v Riley (1995) EOC 92-748; Bebbington v Dove (1993) EOC 92-545; Hawkins v Malnet Pty Ltd (1995) EOC 92-767; G v R & Department of Health and Community Services (unreported, HREOC, 17 September 1993); Djokic v Sinclair [1994] HREOCA 16; (1994) EOC 92-643; Hill v Water Resources Commission (1985) EOC 92-127 and Freeshore v Kozma (1989) EOC 92-249.

It is also clear that sexual harassment constituted by conduct of a sexual nature can be the result of a single act or single incident: Hall v A & A Sheiban Pty Ltd [1989] FCA 72; (1989) 20 FCR 217; and Leslie v Graham (unreported, HREOC, 21 July 2000). The question whether a single action or statement can constitute sexual harassment depends on the nature or quality of the action or statement. Some conduct may be so troublesome or vexing to be of such a nature as to cause offence sufficient to constitute sexual harassment. On the other hand, other conduct would not. In addition, there is no reasonableness test in relation to the nature of the complainant's reaction to the relevant conduct. The test is whether a reasonable person would have anticipated that a complainant would be offended, et cetera: Kiel v Weeks (op cit).

Sex discrimination is defined in section 5 of the SDA, and is made unlawful in employment by section 14(2). Those provisions are as follows:

Section 5

(1)

For the purposes of this Act, a person (in this subsection referred to as the discriminator ) discriminates against another person (in this subsection referred to as the aggrieved person ) on the ground of the sex of the aggrieved person if, by reason of:

(a)

the sex of the aggrieved person;

(b)

a characteristic that appertains generally to persons of the sex of the aggrieved person; or

(c)

a characteristic that is generally imputed to persons of the sex of the aggrieved person;

the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of the opposite sex.

(1A) To avoid doubt, breastfeeding (including the act of expressing milk) is a characteristic that appertains generally to women.

(2) For the purposes of this Act, a person (the discriminator_) discriminates against another person (the_ aggrieved person_) on the ground of the sex of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person._

(3) This section has effect subject to sections 7B and 7D.

Section 14(2)

(2)

It is unlawful for an employer to discriminate against an employee on the ground of the employee's sex, marital status, pregnancy or potential pregnancy:

(a)

in the terms or conditions of employment that the employer affords the employee;

(b)

by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment;

(c)

by dismissing the employee; or

(d)

by subjecting the employee to any other detriment.

Given the evidence in each parties' case as outlined above, this is not a case where a finding could be made about the event which took place at the Lyons Hotel on late Sunday 23 August 1998/early Monday 24 August 1998. The Court is required to come to a conclusion as to whether or not on the balance of probabilities the events as alleged by Ms Frith took place.

Tribunals and Courts of Law are frequently asked to decide which of two versions of a series of facts they accept. It is often a very difficult task particularly where both witnesses are credible. The decisions are made with the benefit of a number of factors. Perhaps the most important is each witnesses' demeanour in the witness box, his or her method of giving the evidence, the way questions are answered in cross-examination, the willingness to acknowledge the possibility of error and changes in recollection due to the passage of time. Other matters that would be looked at include the interest that the witness might have in the outcome of the proceedings and the inherent likeliness or unlikeliness of the evidence when considered with the background of the known facts. Finally, most Tribunals or Courts seek to find some form of corroboration from other evidence of whatever nature. The decision that is made is not always one between believing one witness and not believing another or holding that one witness is telling the truth and the other is lying. More often than not the decision comes down to the preference of one recollection over another. Recollection is notoriously unreliable.

In this case the evidence of Ms Frith was tested by cross-examination which sought to attack her general reliability as an historian of all of the events as they occurred between 21 August 1998 and 24 August 1998, and show inconsistencies in her evidence as opposed to the evidence of other witnesses, particularly Ms Emmett, Ms Greenland and Mr Pronk. It was also sought to be tested by demonstrating inconsistencies in her later affidavit as against her original complaint with HREOC.

Examples of some of these attacks on her evidence are as follows:

• That she denies Mr Brindley lent her money to buy food on the journey up to Cairns, for her groceries when she arrived in Cairns or later in the evening in the bar;

• That she denies that she was badly affected by alcohol and drugs on the night of 21 August 1998 and that Mr Brindley did not find her asleep outside the hotel but that she herself came back inside the hotel after the bar was closed;

• That she did not raise in her HREOC complaint that Mr Brindley made any suggestion to her on Friday evening of 21 August 1998 to go upstairs with him and drink alcohol with him;

• That her evidence about when she last mentioned the tax cheque to Mr Brindley was inconsistent as between her oral evidence and her affidavit filed on 10 July 2001;

• That there were discrepancies in her evidence about walking to the police station in that in her complainant to HREOC she said she actually walked to the police station but in her affidavit and oral evidence she said she walked to a bus depot, then to a service station and from there got a taxi to the police station;

• That the allegation that Mr Brindley asked her about her sex life with ex-boyfriends did not appear in her first affidavit and only in her second affidavit of July 2001;

• That there is a two hour time gap between when she left the hotel room at the Lyons Hotel and when she telephoned Mrs Betty Brindley. I note this is based upon Mr Brindley's evidence that they finished their drinks at the Market Place Hotel at about 11.30 p.m. and then returned to the room at the Lyons Hotel.

Both Ms Frith and Mr Brindley were put through the same type of cross-examination and not surprisingly there were inaccuracies and inconsistencies in their evidence and affidavits. It is not surprising that this was the case. The question for the Court is whether their inaccuracies and inconsistencies lead me to the conclusion that the evidence given by them is totally unreliable.

Ms Emmett's evidence was also subject to strenuous attack. However, the only really important evidence Ms Emmett gave, germane to my decision, is the evidence about the telephone call she received from Ms Frith late Sunday 23 August 1998/early Monday 24 August 1998. She was not attacked on this because there is no doubt it is substantially corroborated by Mrs Betty Brindley's evidence in the respondent's case.

Ms Greenland and Mr Pronk both clearly agreed in oral evidence that their memory was affected by the time that had passed from the events. Put in context, they were asked to recall events that took place on one night and day three years before. I accept they gave truthful evidence in those circumstances.

There was not really a great deal which was inconsistent in the evidence of Mrs Brindley, Ms Frith or Ms Emmett about what occurred in the telephone conversations immediately after the alleged incident.

Under cross-examination, Ms Frith did not resile from her vehemently held position in relation to what actually occurred in the hotel room at the Lyons Hotel on the night in question.

All of her actions immediately following that are consistent with her complaint. She left a hotel room she was sharing with Mr Brindley very late Sunday evening or in the early hours of Monday morning. She did so grabbing her bag and while she was still in her pyjamas. She called Ms Emmett at the Exchange Hotel very distressed and crying and said Mr Brindley had told her she had to have sex with him to keep her employment. She was advised by Ms Emmett to do two things, firstly, call Mrs Brindley and tell her what had happened and secondly to go and make a complaint to the police.

She did both of those things. She also talked with two men in the foyer area of the hotel and had to change into her clothes from her pyjamas. She called Ms Emmett, then she called Mrs Brindley. Both those witnesses were woken from their sleep.

I do not see it as detracting from the inherent plausibility of her evidence as to what occurred. It is not plausible that she would have done all of those things if she had simply had an argument with Mr Brindley about her tax cheque. I do not accept that it is on the balance of probabilities plausible that Ms Frith would have left the room in her pyjamas, had the wit to concoct a story sufficiently enough to call both Ms Emmett and Mrs Brindley in a distressed state as she did, if Mr Brindley and she had parted the evening as Mr Brindley says they did.

In relation to these events as they unfolded on Sunday 23 August 1998, both in the car journey to Cairns from Mossman, at the bus depot, at dinner and drinks then later at the Lyons Hotel, I accept that Ms Frith has given an accurate report of those events and Mr Brindley has not.

I cannot however accept that Ms Frith gave the Court an accurate version of what occurred on Friday evening at the Exchange Hotel. I do not accept Ms Emmett would have seen enough of those events to form the conclusions she did about the amount of alcohol Mr Brindley gave to Ms Frith. I accept the evidence of Mr Pronk, Ms Greenland and Mr Brindley. I find that on the balance of probabilities Ms Frith was deeply upset by the sudden news of her aunt's death and that she consumed a great deal of alcohol and combined this with smoking marijuana. I do not accept that she found her own way into the bar and that what Mr Brindley says occurred on this night is correct. He was in no way sexually harassing her but rather was trying to settle her down and comfort her distress at the death of her aunt.

Although I have concluded that the Exchange Hotel is vicariously liable for the actions of Mr Brindley pursuant to section 106 of the SDA[3], it has been suggested that it may not necessarily follow that the Exchange Hotel (itself) has unlawfully discriminated against Ms Frith.

In Leslie v Graham (2002) FCA 32, Branson J said (at paragraph 73):

"...while (the SDA) renders unlawful discrimination by an employer on the ground of sex, it does not render unlawful discrimination by a fellow employee on the ground of sex. While I have found that (the employer) is vicariously liable under (the SDA) for (the respondent employee's) sexual harassment of (the applicant employee), nothing in (the SDA) deems an employer found vicariously liable for an act of sexual harassment to have itself engaged in the act of sexual harassment (cf s. 105 of [the SDA])."

With the greatest of respect to her Honour, I must confess to finding the above passage somewhat impenetrable. Section 106 of the SDA deals with vicarious liability.[4] Leaving aside the exemption referred to in subsection (2), which does not apply in the present circumstances, the section clearly states that "where an employee or agent of a person" does a relevant unlawful act, the SDA applies "in relation to that person as if that person had also done the act". The "person" referred to in section 106(1) can only be (in the present circumstances) an employer. It follows that, if Mr Brindley does an act that would, if done by the Exchange Hotel, be unlawful under section 14 of the SDA (which appears in Part II of the SDA), then the SDA applies in relation to the hotel, as if the hotel had also done the act.

Thus, it seems to me that the SDA does render unlawful discrimination by a fellow employee (in this case, Mr Brindley) on the ground of sex. Although it is true that Mr Brindley may not himself have discriminated against Ms Frith on the grounds of her sex within the meaning and contemplation of section 14 (because, after all, he was not her employer in his personal capacity), the effect of section 106 is that the Exchange Hotel is deemed to have also done the relevant acts, thereby triggering the provisions of section 14.

In any event, the Exchange Hotel is, in every sense, the alter ego of Mr Brindley. In my opinion, there can be no relevant distinction between Mr Brindley's acts and behaviour in relation to or in connection with Ms Frith's employment and the acts and behaviour of the Exchange Hotel itself.

I find, therefore, that the Exchange Hotel has unlawfully discriminated against Ms Frith on the ground of her sex by subjecting her to the kind of detriment referred to in these reasons.[5]

Ms Frith claims both economic and non-economic loss. As Driver FM observed in Wattle v Kirkland (No.2) (2002) FMCA 135 (at para 70):

"Damages should be assessed on the basis of the torts based principle of putting the applicant in the position she would have been had the wrong against her not been committed."

If Ms Frith had not been harassed and discriminated against, then there is no reason why she could not have continued to work at the Exchange Hotel.

The evidence reveals that Ms Frith was unable to find employment from 24 August 1998 to date except for some casual employment at the gymnasium. I accept that she did not have a continuous employment history before this incident and while she maintains she had a long work history in the entertainment industry, her evidence leads me to the conclusion that this was not the case and that she had long periods of time when she was not employed.

Ms Frith's claim is $15,000.00 for economic loss, $500.00 for special damages and $10,000.00 for special damages, a total of $25,500.00 for all of those elements.

Without expert evidence as to a preferred treatment program and prognosis, however, I am not prepared to make any award in respect of anticipated future expenses. There is no evidence before me as to any costs that Ms Frith has incurred for treatment. Mr Brindley has paid for the cost of her bus fare back from Cairns.

In relation to her economic loss I am satisfied that she was receiving $355.00 net of tax from the employment at the hotel. She has not worked apart for a very short period at the gym on a casual basis. She has on the evidence before me, had periods of time where she was unemployed for lengthy periods between jobs. Her evidence in this regard was very limited and makes the task of assessing her economic loss very imprecise.

I am satisfied that given the nature of her past employment history as detailed in her oral evidence under cross-examination that the sum of $5,000.00 is appropriate as I am satisfied that even if she had been unemployed for some periods she would have earned at least this sum from the type of employment her evidence reveals that she has been able to undertake in the past.

In relation to other compensatory damages, I accept the evidence of Ms Frith herself and the evidence of Dr Hayes (as I have indicated) that Ms Frith has been profoundly affected by the events that occurred during her employment at the Exchange Hotel. I find that her adverse reaction to those events has continued through to the present, although the severity of her reaction is likely to abate once the focus is not on these events as it was in the time close to the trial. I accept that she dwelled on the incidents in the manner she described, and that her confidence has been affected in the manner she has described.

There appears to be no doubt that she has suffered anxiety, loss of motivation and loss of enjoyment of life. I also accept that Ms Frith's relationships (including her sexual relationships) have been adversely affected by the events described in these reasons.

Ms Frith was a vulnerable young lady and the court must deal with the applicant as it finds her [see Shiels v James [2000] FMCA 2 and Elliott v Nanda & Commonwealth (2001) FCA 418].

Overall, I am satisfied that the conduct of Glen Straits Pty Ltd and Mr Brindley had a significant and negative impact on Ms Frith. This impact has continued until trial.

Mr Reid suggested that the cases reveal that the range of awards for such damages is between $5,000.00 and $15,000.00. The tables in the HREOC "Federal Discrimination Law 2004" summary (including the supplement for January to June 2004) seem to support Mr Reid's submission in that regard.[6] It is not necessary, however, for me to express a concluded view on this matter.

In Mayer v Australian Nuclear Science and Technology Organisation (2003) FMCA 209, Driver FM said:

"It is important to consider that damages for non-economic loss should not be minimal as this would tend to trivialise or diminish respect for the public policy behind anti-discrimination legislation: see Alexander v Home Office (1998) 1WLR 968 at 975; Bonella v Wollongong City Council (2001) NSWADT 194 at 121."

In Leslie v Graham (2002) FCA 32, Branson J awarded damages of $16,000.00 for non-economic loss. In Elliott v Nanda (2001) FCA 418, Moore J awarded damages of $15,000.00. Both were sexual harassment cases, and when I have regard to the awards in those cases, together with the other awards in HREOC's "Federal Discrimination Law 2004", I conclude that the appropriate award for (general) non-economic loss in the circumstances of this case is between $10,000.00 and $12,500.00. I propose to adopt the figure of $10,000.00 in the circumstances of this case.

Ms Frith also seeks aggravated damages.

The basis of the court's jurisdiction to order damages is section 46PO(4) of the HREOCA:

(4) If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:

(a)

an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;

(b)

an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;

(c)

an order requiring a respondent to employ or re- employ an applicant;

(d)

an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;

(e)

an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;

(f)

an order declaring that it would be inappropriate for any further action to be taken in the matter.

It is clear from section 46PO(4) that the respondent can only be ordered to pay to an applicant "damages by way of compensation for any loss or damage suffered because of the conduct of the respondent". It follows, in my opinion, that although the court has power to award aggravated damages, it does not have power to award exemplary damages.[7].

Difference between aggravated damages and exemplary damages

In Gray v Motor Accident Commission (1998) HCA 70, Gleeson CJ, McHugh, Gummow and Haine JJ quoted with apparent approval a passage from the judgment of Windeyer J in Uren v John Fairfax and Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118 at 149. In the passage, Windeyer J described the difference between aggravated damages and exemplary damages as being:

"...that aggravated damages are given to compensate the plaintiff where the harm done to him by a wrongful act was aggravated by the manner in which the act was done; exemplary damages, on the other hand, are intended to punish the defendant, and presumably to serve one or more of the objects of punishment -- moral retribution or deterrence."

Although aggravated damages are compensatory in nature, the purposes behind an award of exemplary damages are different:

"These purposes include punishment of the defendant for a high-handed disregard of the plaintiff's rights, deterrence of the defendant to prevent him or her from reaping a gain from the wrong doing, assuaging any feelings on the part of the plaintiff to seek revenge for the hurt done, and marking the condemnation of the Court for the defendant's conduct...(Exemplary damages) may be awarded when the defendant has been guilty of "conscious wrong doing in contumelious disregard of another's rights" or has committed a particularly flagrant violation of the plaintiff's rights; the High Court has also accepted that they are available if the defendant's conduct after the commission of the tort shows a cruel and reckless disregard of the plaintiff, thereby demonstrating the defendant's callousness and indifference towards the plaintiff in committing the wrong. It is not, however, necessary for the plaintiff to show that the defendant has been motivated by malice, in the sense of spite or ill-will."[8]

Generally speaking, compensatory damages must be approached by considering the effect of the wrongful act on the plaintiff, whereas exemplary damages (being punitive) are to be approached from a different perspective:

"In considering whether to award exemplary damages, the first, if not the principal, focus of the inquiry is upon the wrong doer, not upon the party who was wronged. (The reaction of the party who was wronged to high-handed or deliberate conduct may well be a reason for awarding aggravated damages in further compensation for the wrong done. But it is not ordinarily relevant to whether exemplary damages should be allowed). The party wronged is entitled to whatever compensatory damages the law allows (including, if appropriate, aggravated damages). By hypothesis then, the party wronged will receive just compensation for the wrong that is suffered. If exemplary damages are awarded, they will be paid in addition to compensatory damages and, in that sense, will be a windfall in the hands of the party who was wronged. Nevertheless, they are awarded at the suit of that party and, although awarded to punish the wrong-doer and deter other from like conduct, they are not exacted by the State or paid to it."[9]

So unalike are compensatory (including aggravated damages) and exemplary damages that the very description of the latter as "damages" has been questioned. For example, Spigelman CJ in Harris v Digital Pulse [2003] NSWCA 10; (2003) 197 ALR 626 said (at page 629):

"The judgment and the submissions in this case adopt the terminology of "exemplary damages". I do not find that to be appropriate. "Damages" are a remedy at common law. The issue before the Court is whether a punitive or monetary award can be made in equity. Inexact use of terminology is here, as is so often, prone to cause confusion of thought. The use of the word "damages" with respect to both compensatory damages and exemplary damages obscures the fact that a common law litigant who received an award of the latter has not in fact suffered any "damage" in the relevant respect."

In the same case, Heydon JA characterised the award of exemplary damages as, in effect, a "criminal sanction".[10] Spigelman CJ did not agree with his Honour's characterisation in that regard, and preferred the use of the term "punitive monetary award".[11]

By submitting that aggravated damages should be awarded because of the "predatory" nature of Mr Brindley's actions on 23 and 24 August 1998, there is an overtone of a claim for exemplary damages and Ms Frith did not seek exemplary damages (however characterised). As I have explained above, however, it seems clear that the Court does not have power to make an award for exemplary damages in any event, and I respectfully disagree with Raphael FM's conclusion in Font v Paspaley Pearls (2002) FMCA 142 that such a power exists.[12]

I adopt the findings of Walters FM in Hughes (formerly De Jeager) v Car Buyers Pty Ltd & Ors (supra) where he found that aggravated damages are clearly compensatory in nature:

"The notion of aggravated damages is one that is by no means clear, and refers to two aspects of compensation. On the one hand, the term is used to denote an award which is increased, beyond what might otherwise have been available, to take account of the defendant's conduct in the commission of the tort and thereafter up to the date of the action. Use in this sense, aggravated damages are "compensatory in nature, being awarded for injury to the plaintiff's feelings caused by insult, humiliation and the like". They are available in respect to those torts which protect a plaintiff's reputation, feelings or liberty...

In recent years the compensation of the plaintiff's injured feelings has extended also to those torts which protect economic interests, or physical or bodily integrity. In this case, court's generally refer simply to damages for mental distress."[13]

107.

Elliott v Nanda & Commonwealth (2001) FCA 418 is clearly authority for the proposition that aggravated damages can be awarded where the resolution of an applicant's complaint has been delayed by the conduct of the respondent (including a respondent's failure to participate in proceedings before HREOC) provided that the applicant has suffered additional mental distress because of the delay.

Similarly, Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497 suggests that aggravated damages may be appropriate where a defendant conducts his or her case in a manner which is unjustifiable, improper or lacking in bona fides. Aggravated damages may also be awarded where the defendant does not express regret for wrongs done (see Walter v All Tools (1944) 61 TLR 39 at 40, cited in Nye v New South Wales (2004) Aus Tort Reports 81-725 at para 249).

In the context of defamation cases, it has been held that aggravated damages may be awarded:

"...when the conduct of the defendant between the publication of the libel and the trial has been such as to increase the hurt suffered by the plaintiff. Although that conduct need not be malicious, it must, to justify such an award, be in some way unjustifiable, improper or lacking in bona fides."[14]

In Leslie v Graham (2002) FCA 32, Branson J said:[15]

"I consider it appropriate to place weight on the fact that the respondents did not take part in the hearing before (HREOC) and exercised their right not to comply with the determination of (HREOC). It may be that if the respondents had cooperated with (HREOC) when it conducted its inquiry, its finding may have in part been different. It may also have been that a hearing before this Court would have proved unnecessary. That is, I am satisfied that there is a real possibility that, had the respondents cooperated with (HREOC), an earlier resolution of the matter would have been achieved."

Although her Honour did not specifically deal with the above matter in the context of a claim for aggravated damages, the relevance of behaviour similar to that of the respondents in the present case is clearly recognised as a relevant consideration.

In my opinion, an award of aggravated damages is not appropriate. The respondent is entitled to defend himself in legal proceedings and in so doing may seek to have the character of the applicant put in question on issues of credibility.

By so doing, all elements of the claim by Ms Frith that related to the alleged events at the Exchange Hotel in Mossman have not been accepted as sexual harassment by Mr Brindley. I do not propose to make any award for aggravated damages

I have concluded that, in my opinion, Ms Frith should receive a total award of $10,000.00 in respect of general damages.

Ms Frith should also be paid the amount to which I have referred in respect of loss of income of $5,000.00.

Accordingly and for these reasons, I propose to make the orders as set out at the commencement of these reasons

I, Tamara Thomson, certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of Rimmer FM

[1] Transcript of Proceedings 29.11.01 pages 10-14

[2] See, SDA s.9.

[4] Section 106 is reproduced in paragraph 31 of these Reasons.

[5] See also the passages from R v Equal Opportunity Board; Ex Parte Burns [1985] VicRp 31; (1985) VR 317 at 323 and Aldridge v Booth [1988] FCA 170; (1988) 80 ALR 1 at [17], referred to in Font v Paspaley Pearls (2002) FMCA 142 at paras 137-138.

[6] See the tables at chapters 5.2.3 and 5.2.4

[7] See Hall v A & A Sheiban Pty Ltd [1989] FCA 72; (1989) 20 FCR 217 at pp 240-1 (per Lockhart J) and p 282 (per French J); Cf the decision of Raphael FM in Font v Paspaley Pearls (2002) FMCA 142 at paras 158 to 167.

[8] See Law of Torts (3rd edition) by Balkin & Davis, at [27.10].

[9] See Gray v Motor Accident Commission (1998) HCA 70 at para 15.

[10] Harris v Digital Pulse [2003] NSWCA 10; (2003) 197 ALR 626 at p.708.

[11] Hughes (formerly De Jager v Car Buyers Pty Ltd & Ors [2004] FMCA 526 see findings of Walters FM.

[12] See Hall v A & A Sheiban Pty Ltd [1989] FCA 72; (1989) 20 FCR 217 at pp 240-1 (per Lockhart J) and p 282 (per French J).

[13] See Law of Torts (3rd edition) by Balkin & Davis, at [27.7].

[14] See Law of Torts (3rd edition) by Balkin & Davis, at [19.80], and the cases there cited.