Anti-Discrimination Act 1998 (Tas), ss 13(a), 78(1), 86, 89(1), 94.

Charisteas v Charisteas [2021] HCA 29, 393 ALR 38; Haines v Leves (1987) 8 NSWLR 442; Burton v Houston [2004] TASSC 57; Elliott v Nanda & Commonwealth [2001] FCA 550; Commissioner of Police v Estate of Russell [2002] NSWCA 272; [2002] 55 NSWLR 232; Hall v A & A Sheiban Pty Ltd (1989) FCA 72, 20 FCR 217; Commonwealth v Anti-Discrimination Tribunal [2008] FCAFC 104, 248 ALR 494, referred to.

Judgment Number: [2022] TASFC 12

2 The primary judge's order dismissing the appeal from the Anti-Discrimination Tribunal is set aside.

1. The order of the Anti-Discrimination Tribunal requiring the appellant to pay the complainant the sum of $45,000 by way of compensation is set aside, and replaced with an order that the appellant pay compensation to the complainant in the sum of $22,500.

1. On 20 December 2017, the respondent made a complaint to the Anti-Discrimination Commissioner (the Commissioner) concerning the conduct of the appellant. To avoid confusion arising from terms used in respect of the proceedings relevant to this appeal, I will hereafter refer to the respondent to this appeal as the "complainant". The complaint alleged conduct by the appellant towards the complainant during the course of the complainant's employment as an assistant manager of a retail store operated by her employer, Sanity, between January 2013 and late 2017. The appellant worked as a delivery driver on contract for Toll Transport Pty Ltd (Toll). His duties included making regular stock deliveries to the store.
2. The complaint alleged that the conduct in question was in breach of the Anti-Discrimination Act 1998 (the Act). It included that which can be generally characterised as sexual harassment contrary to s 17(2) of the Act, and victimisation contrary to s 18(2) of the Act. The complaint also alleged that Toll was liable for the appellant's contraventions of the Act because it had breached its obligations under s 104 with respect to its agent, the appellant. Toll was expressly named as a respondent to the complaint.
3. After investigation by the Commissioner, the complaint, in full and against both respondents, was referred to the Anti-Discrimination Tribunal (the Tribunal) for inquiry. The inquiry was conducted in March 2020 by a single tribunal member, Ms Kate Cuthbertson. Toll was not represented at and took no part in the hearing. It seems that the reason for this is that the complainant and Toll had entered into a private compromise after the complaint had been referred to the Tribunal for inquiry, but before the commencement of the hearing. The tribunal member handed down a written decision on 1 September 2020. She found that the appellant had engaged in the majority of the conduct alleged against him and that that conduct constituted sexual harassment contrary to s 17(2) of the Act. However, the tribunal member was not satisfied that the appellant had victimised the complainant within the meaning of s 18 of the Act. It was ordered pursuant to s 89(1)(d) of the Act, that the appellant pay compensation to the complainant in the sum of $45,000. That sum included a component of $20,000, which the tribunal member characterised as "aggravated damages".
4. On 23 June 2021, Blow CJ dismissed an appeal by the appellant against that order. The appeal was authorised by s 100(1) of the Act. The appellant has now appealed to this Court from his Honour's decision. The appellant represented himself before the Tribunal, the primary judge and now this Court.

1. The Tribunal heard oral evidence from the complainant and the appellant, as well as a number of witnesses, at the inquiry. The tribunal member accepted the credibility of the complainant and witnesses who supported her version, and found essentially in accordance with that version. The appellant had given evidence denying the complainant's description of his conduct, but the tribunal member found "his account of events unconvincing".
2. Ultimately, the tribunal member found that the appellant had engaged in the following conduct:
   • The appellant regularly directed his attention to the complainant. He would ask after her when she was not in the store and enquire when she was next working. He would try to engage her to deal with his deliveries, even when other staff were available to do so.
   • On up to six occasions he referred to her as "Juicy Lucy". The tribunal member found that this reference "amounted to an unwelcome remark with sexual connotations". Although there was "nothing overtly sexual contained in the statement", the tribunal member found that "the context in which those comments were made gives them that flavour".
   • The appellant asked the complainant "how her boyfriend was" on numerous occasions. The tribunal member found that although these comments did "not neatly fall within the definition of sexual harassment" they were "part of the contextual material that enabled the Tribunal to be satisfied that other conduct was either of a sexual nature or involved sexual connotations".
   • On an occasion in mid-2014, the appellant made comments to the complainant about her clothing, specifically stating "nice pants" and then slapped her on the bottom without her consent as she bent over to inspect a box he had delivered. After he had done so, he told the complainant not to disclose his actions to her employer. On the following day, he approached the complainant at her work place and asked her if she had told her employer about this. The tribunal member was satisfied that this act "clearly constitutes an unsolicited act of physical conduct of a sexual nature, given the part of her body that was touched and in the context of the comments made about her clothing".

1. The findings included that the conduct commenced in late 2013, and continued in various respects until late 2017. The tribunal member was "comfortably satisfied" that the conduct constituted sexual harassment contrary to s 17(2) of the Act. However, the tribunal member was not satisfied that the appellant had breached s 17(1), in particular that the conduct "was done by reference to the attributes of age or gender".
2. The claim of victimisation arose in the following way. Although the complainant had made her immediate superior and fellow workers aware of the appellant's conduct, including the act of slapping her on the buttocks, she had not made a formal complaint either to her employer or anyone else. In 2017, in the course of conversation, she mentioned to a senior manager that she found the appellant "creepy or sleezy" and that he had on one occasion slapped her on the buttocks. This information was escalated through the managerial levels of Sanity, and eventually Sanity's head office reported the matter to Toll and requested an investigation. All of this happened without the complainant's knowledge or approval. Toll immediately stood the appellant down and commenced an investigation. The complainant subsequently became aware that this had happened in circumstances which I will describe later in these reasons. She was upset and concerned about the fact that this complaint had been made to Toll, and requested that the investigation be discontinued. This occurred but the appellant was no longer permitted to undertake deliveries to Sanity. He then sought legal advice. In November 2017, his lawyer sent a letter (the defamation letter) to the complainant alleging that she had defamed the appellant and demanding a written apology, retraction of her allegations, and payment of compensation of $30,000. The letter was sent to the complainant at her workplace.
3. The tribunal member found that the defamation letter caused considerable mental anxiety, distress and suffering to the complainant. However, the tribunal member was not satisfied that the appellant's conduct in making the threats contained in the letter occurred because the complainant had alleged or was intending to allege a breach of the Act. Hence, the conduct did not amount to a breach of the provisions of s 18 of the Act. However, the tribunal member found that sending this letter when the appellant had committed, and well knew that he had committed, the conduct which formed the basis of the allegation of defamation, was a factor which aggravated the impact of his sexual harassment of the complainant and, hence, justified a component of compensation in the nature of aggravated damages.

1. Section 100(1) of the Act permits an appeal to the Supreme Court on a question of law or fact. The grounds relied upon by the appellant in the appeal before the primary judge were broad ranging. They were summarised by his Honour as follows:

• That the proceedings commenced by the complainant were vexatious.

• That the Tribunal's orders were inconsistent with the evidence.

• That the complainant had been paid compensation by his employer, and that that payment should have been taken into account in his favour in the assessment of compensation.

• That the award of $20,000 compensation in the nature of aggravated damages was manifestly excessive.

1. His Honour rejected each ground. To a significant extent, the grounds of the appeal to this Court revisit the arguments presented to the primary judge, and criticise his Honour's reasoning in respect of them. I turn now to their consideration.

Ground 1 - Alteration of audio recording and transcript

1. Before both the primary judge and this Court, the appellant asserted that there has been unlawful alteration of the audio recording of the inquiry. The thrust of his submission is that the tribunal member is responsible for this and that her motive was to remove parts of the recording which would evidence her bias in favour of the complainant and her legal representative, together with other errors.
2. The primary judge heard evidence from the appellant and his wife concerning asserted omissions from the recording. There was also evidence from the tribunal official who arranged for the preparation of a transcript for the purposes of the appeal. That official described an unremarkable process of arranging for the preparation of a transcript of the audio recording by the transcription service of the Supreme Court. The audio recording originated from digital files contained on the Tribunal's audio recording system. Her evidence was that the Supreme Court transcribers access the audio files from a shared drive with the Tribunal. These files are also the source of the recording on the USB drive provided to this Court and to the parties. There is no dispute that the transcript accurately reflects the audio recording. It must be said at this point that on the basis of that evidence, it is not entirely clear how a person such as the tribunal member would, in practical terms, have the capacity to alter the relevant digital files. In any event, the evidence before the primary judge was that there had been no such alteration.
3. It is clear from his reasons that the learned primary judge took the appellant's allegations seriously. He agreed with the appellant that tampering with the transcript and/or the audio recording would be a very serious matter and would, in fact, probably amount to a crime. His Honour went to considerable effort to consider the evidence relevant to the various discrepancies between the audio recording and the appellant's asserted recollection of the hearing. His Honour concluded that all of the discrepancies were explained by inaccurate recollection, rather than altered recording. His Honour also considered that the specific discrepancies asserted by the appellant were not consistent with the alleged motive to remove problematic or erroneous parts of the transcript. Ultimately, the primary judge was not satisfied that either the transcript or the recording had been the subject of illegal alteration.
4. At the hearing of the appeal to this Court, the appellant asserted an omission from the transcript concerning comments he alleged were made by the tribunal member at the commencement of the hearing. This allegation had also been raised with the primary judge, but the appellant provided more detail to this Court concerning the allegedly deleted comments. He pointed out that on the audio recording, a knock can be heard before the tribunal member enters the hearing room, which he submits, confirms that the audio equipment was recording from that time. The transcript commences with the tribunal member asking everyone to be seated, taking appearances and then engaging in preliminary discussion with the parties. The appellant asserts that there is passage missing, during which the tribunal member introduces herself, refers to the case number and asks why Toll is not present or represented at the hearing. The recording does not contain these comments. The appellant asserts that around the same time, there was also a discussion during which the tribunal member provided the complainant's legal representative with case law references and other information. The appellant asserts that all of this has been deleted from the record, and that the deleted discussion demonstrates favouritism by the tribunal member towards the complainant.
5. I agree in general terms with the primary judge's analysis of this and other asserted discrepancies. There is no merit in the appellant's arguments concerning the significance of such discrepancies. For example, if cases were mentioned during the hearing by the tribunal member, that information was patently made available to both parties. There is nothing else asserted by the appellant concerning an alleged alteration which is significant to the determination of this appeal.
6. During the course of the hearing, this Court asked the complainant's counsel, Mr Mackie, to explain why Toll was not present at the inquiry. The reason for Toll's absence is not apparent from the transcript. Mr Mackie asserted that at the commencement of the inquiry, he had informed the tribunal member that the complainant "no longer wished to pursue her complaint against Toll". It was pointed out to counsel by a member of the Court that neither the audio nor the transcript of the inquiry record that conversation. Mr Mackie disavowed any suggestion that this conversation had occurred during an earlier hearing, and said this:

"...it is my firm memory that on the morning of the hearing, I raised with the Tribunal member that the matter would not go ahead against Toll..."

1. The recollection of Mr Mackie is not reflected in the audio recording or the transcript. There is no reference at all to the potential presence of Toll as a party to the hearing of the inquiry. In respect of that particular aspect, Mr Mackie's recollection is consistent with the assertions of the appellant. The appellant submits that the only reasonable explanation is that the recording has been tampered with to achieve this result. This, he says, supports his assertion that the recording has been unlawfully altered in other respects as well.
2. Having listened to the audio recording, reviewed the transcript and considered the underlying context that the original recording is contained in digital files within the recording system of the Tribunal, which according to the tribunal witness cannot be altered, I cannot detect error in the primary judge's approach to this question. Despite the ostensible firmness of Mr Mackie's recollection, I am satisfied that the explanation for the absence of the conversation described by him from the recording and the transcript does not arise from unlawful alteration of the recording of the inquiry. In my view, it is highly probable that the information concerning Toll's non-appearance at the inquiry was provided to the tribunal member in some other way and on another occasion, either at a directions hearing or by some other form of communication. As will be seen, while the reason for Toll not being represented at the inquiry is relevant to the consideration of another ground of appeal, there is no apparent reason why anyone, including the tribunal member, would find it necessary or desirable to alter the record to remove such a conversation. Further, in all other respects, the discrepancies asserted by the appellant are either immaterial or of little significance. I agree with the primary judge that it makes no sense for the tribunal member or anyone else to alter the record in the ways asserted by the appellant. In any event, my assessment of the recorded proceedings as reflected in the transcript is that there is no break in the logical flow of the conversation, or any other indication of discrepancy or omission. I find no merit in this ground and would decline to order or initiate further investigation or enquiry.

1. These grounds reflect arguments made to the primary judge. The appellant based his arguments about alleged factual errors by the tribunal member on the provisions of s 105 of the Act. That section creates an offence if a person, in connection with any matter referred to in the Act, makes a statement knowing it to be false or misleading or omits any matter from a statement knowing that without that matter the statement is misleading. As the learned primary judge pointed out, this section has nothing to do with the arguments made by the appellant in respect of this ground. His arguments assert that the tribunal member made mistakes of fact consequent upon either her misapprehension of the evidence, or her acceptance of evidence which the appellant contends is inaccurate. In his submissions to this Court, the appellant asserted that these matters reflect on the credit of the complainant and her witnesses and demonstrate that the tribunal member was wrong to determine the case on the basis of an acceptance of the version provided by the complainant. The primary judge analysed twelve separate arguments made to him by the appellant in this respect and concluded that either the appellant himself had misapprehended the evidence or, alternatively, that where the tribunal member had made a finding or a comment which was inconsistent with the evidence, the matter was of little, if any, significance, and would not have affected the outcome of the inquiry.
2. I agree with the primary judge's analysis of each argument. However, the appellant has reasserted a number of these in the hearing before this Court and I will deal specifically with those submissions.
3. The first argument made by the appellant concerns what he asserts to be important discrepancies between the evidence of the complainant and that of her general practitioner in respect of the timing of their first consultation, and then how regularly she attended the doctor after that. The appellant submits that the complainant's evidence is that she saw the general practitioner on the day after receiving the defamation letter. The letter is dated 6 November, it would have been received on 7 November so the day after that is 8 November. He submits that this is inconsistent with the evidence of the general practitioner, who said that she first saw the complainant on 13 November. The appellant also points to an answer in the complainant's evidence to the effect that she saw the general practitioner "maybe every two or three months". According to the general practitioner, the complainant attended on her on five occasions.
4. The appellant's argument seems to be that these are significant inconsistencies from which it should be concluded that the complainant gave false evidence for the purpose of exaggerating the impact of the defamation letter on her. The learned primary judge found that these discrepancies, even if established, were inconsequential and did not affect the tribunal member's assessment of the evidence concerning the impact of the appellant's conduct, including the defamation letter, on the complainant. His Honour was clearly correct about this. The discrepancies, taken at their highest, concern minor matters of detail. They do not detract in any way from the complainant's description of the impact of the appellant's conduct on her. It is important to note that her evidence about this had strong support from other witnesses, the doctor, the complainant's partner and fellow workers.
5. In any event, the evidence does not support the appellant's assertion of fabrication on the part of the complainant. In evidence in chief, the complainant said that she went to see the general practitioner "immediately after" receiving the defamation letter. This is consistent with the doctor's evidence. Her evidence about going to see the general practitioner was obviously reliant on her memory of detail of events over two years earlier. The specific answers relied upon by the appellant were in response to his attempts in cross-examination to obtain precise detail about the timing of these events. The point of the complainant's evidence about seeing the doctor was simply to describe that she found it necessary to seek medical assistance because of the defamation letter and the circumstances relevant to it. This important fact was not undermined in any way by cross examination. In any event, the complainant was clearly not trying to exaggerate this history. It was always part of her case that she would adduce evidence from the general practitioner and present records relevant to those consultations. It was obviously her intention to provide the Tribunal with an accurate and independent history of her attendance on her doctor. The appellant's submission that the primary judge and this Court should infer deliberate exaggeration and lack of credit and candour on the part of the complainant from these answers is, quite frankly, nonsense. The submissions are rejected.
6. The second argument concerns the complainant's evidence that she had been "slapped" on the buttocks by the appellant. The appellant's argument in this regard is, in essence, based on an attack on the credibility of the complainant on the basis of a prior inconsistent statement, in particular that she told her general practitioner that the appellant had "grabbed" her on the buttock. The appellant says that there is a significant inconsistency between these descriptions of the event, because "slapped" and "grabbed" convey different physical acts. The existence of the prior representation to the doctor is said to be established by a passage in the doctor's report, which refers to the complainant being "very upset about the incident when he grabbed her on the buttock in 2014". In her evidence to the Tribunal, the doctor could not recall which word had actually been used by the complainant, and agreed that she could have said either "slapped" or "grabbed". However, the doctor was sure that the complainant had described some form of "hand/buttock contact", and that it had been "absolutely" without the complainant's consent.
7. The learned primary judge correctly rejected the appellant's argument that the tribunal member had ignored this asserted inconsistency. The said evidence is clearly discussed in the tribunal member's reasons. In any event, the argument that this evidence necessitated a finding impugning the credibility of the complainant is without merit. At its most basic level, the doctor's uncertainty about the words actually used by the complainant means that the evidence simply does not establish the asserted inconsistency of the prior statement. In any event, there was ample evidence from co-workers concerning contemporaneous complaints made to them by the complainant that she had been slapped by the appellant. Finally, even it had been established that at some point in the past the complainant had said that she had been "grabbed" on the buttock, such an inconsistency would not be significant in terms of her credit. The critical point is that she has consistently described an unwanted and unsolicited act of physical contact with her buttock area perpetrated by the appellant. The asserted inconsistency relied upon by the appellant does not in any way undermine the tribunal member's acceptance of the truth of the complainant's version of this act, nor its significance in respect of the overall finding that the appellant had engaged in sexual harassment of the complainant. The argument is rejected.
8. The third argument under this ground concerns an alleged discrepancy between the evidence of the complainant and other witnesses as to the identity of the person who telephoned her on 6 November 2017 to advise her of the receipt of the defamation letter. That person read the letter to her. The alleged discrepancy is based on a prior statement by a co-worker that suggested that she made the telephone call. However, the evidence of the complainant about this point was corroborated by both the worker who was said to have made the prior statement and the worker identified by the complainant as the person who made the call.
9. Given that there is no dispute by the appellant that the defamation letter was sent to the complainant at her workplace, with the intention that it be communicated to her and that it was, in fact, communicated to her, it is difficult to understand the asserted significance of this discrepancy. Even if it was established that the complainant was incorrect about who read the letter to her, it would, at the most, amount to an insignificant mistake. In any event, the prior inconsistent statement asserted to the co-worker reflects on that witness's credibility, not that of the complainant. This argument is rejected.
10. There is no merit in this ground.

1. At the hearing before the primary judge, the appellant provided his Honour with written submissions, together with several documents of an evidentiary nature. One of the documents has the appearance of a Facebook post under the name of the tribunal member, dated 17 May 2019 which states in a repetitive way, the phrase "men shouldn't be making laws about women's bodies".
2. In his written submissions to the primary judge, the appellant asserted that this statement "is a reflection of her feelings about men and having a bias against men". He asserted that this document is a basis for apprehending bias on the part of the tribunal member. It is an aspect of a wider submission that the tribunal member exhibited bias against him during the inquiry in various ways.
3. The learned primary judge noted that the appellant had not pursued this allegation at the hearing of the inquiry, and that when asked by his Honour to identify the documents upon which he relied in respect of the appeal generally from an index of documents submitted by him, which included the Facebook post, he did not refer to that document. His Honour concluded that therefore there was "no evidence that would suggest that the learned tribunal member might have published anything that might have indicated a possibility of bias." He also found that the appellant had not raised the argument on the appeal. However, in argument to this Court, the appellant says that he was told by the judge that he would not have to read out his submissions and he assumed from this that the judge would read and take into account everything contained in that document.
4. The transcript of the appeal at first instance confirms that the appellant responded to the primary judge's invitation to identify documents upon which he relied, by nominating some documents from the list, but did not mention the Facebook post. He also did not specifically verbally reiterate the written submission which was based on this material. On the other hand, it is true to say that during the appellant's final submissions to the primary judge, his Honour referred to the whole of the appellant's "written material" and said "I take it you rely on everything written there?" The appellant was told that he did not need to read it all out.
5. It is clear from this that his Honour incorrectly proceeded on the basis that the appellant had not raised this argument, or provided evidence in support of it, in the case before him. The argument was in the written submissions and the appellant was entitled to conclude that the primary judge would have regard to all of the contents of that document, including this argument. Although the appellant did not specifically refer to the Facebook material, notwithstanding that it was contained in the index of the court book, he was not legally represented and taking the whole of the exchange between the primary judge and him into account, it was reasonable for him to conclude that his Honour would have regard to that document when considering the argument raised in the written submissions.
6. However, that conclusion is not the end of the matter. The argument will only have significance if the Facebook material in fact gives rise to an apprehension of bias on the part of the tribunal member. It is appropriate to now consider that question.
7. In Charisteas v Charisteas [2021] HCA 29, 393 ALR 389, the High Court pointed out that the application of the apprehension of bias principle involves a two-step consideration:

"... first, 'it requires the identification of what is said might lead a judge......to decide a case other than on its legal and factual merits'; and, second, there must be articulated a 'logical connection' between that matter and the feared departure from the judge deciding the case on its merits".

1. In this case, the material upon which the claim of apprehended bias is based is clear, it is the Facebook post. The real question is whether there is a "logical connection" between that post and the possibility of bias on the part of the tribunal member.
2. In my view, the requisite connection does not exist. The connection articulated by the appellant is that the post "shows that the learned Tribunal member is very outspoken in her views on the MeToo Movement". This assertion, in substance, reflects the argument made to the primary judge in written submissions that the statement "is a reflection of her feelings about men and having a bias against men".
3. With great respect to the appellant, the suggestion that the post exposes a "bias against men" is not logical and cannot be justified. Taken at its highest, the post indicates a particular opinion held by the tribunal member with respect to an issue which is the topic of public discourse and differing views in society, but which has absolutely nothing to do with the case before her. There is nothing about this statement which could conceivably support the proposition that the tribunal member has the asserted bias. In any event, there is nothing about it which would logically suggest to a fair‑minded lay observer that the tribunal member might not bring an impartial mind to the resolution of the question which she was required to decide in this case. Further, as the learned primary judge noted, there was nothing else about the tribunal member's conduct of this case which suggested any actual bias or gave rise to an apprehension of bias. I agree with the primary judge's comment that, "There is much to indicate that the learned tribunal member was even handed".
4. It follows that even if the primary judge had considered this material, there is no basis upon which he could properly have found that it provided a basis for a finding of apprehended bias. This ground should be rejected.

Ground 4 - Previous complaint against the appellant

1. In the hearing before the primary judge, the appellant impugned a decision made by the tribunal member prior to the commencement of the hearing of the inquiry to refuse to issue certain witness notices. One proposed notice was to a man named Toby Turner. The primary judge dealt with the argument concerning the tribunal member's refusal to issue a notice to Mr Turner in the following way:

"49 The respondent sought to have a witness notice issued to a man named Toby Turner. There was evidence that Mr Turner had once told Ms Vienna-Hallam of Sanity that the appellant had previously been taken off a delivery run because of a similar complaint by another young girl. The appellant did not dispute that the previous complaint had been made, but contended that the previous allegations were false, and wanted to cross-examine Mr Turner about his motives. Any evidence that Mr Turner could have given on that subject was rightly seen as irrelevant to the issues as to the appellant's conduct towards the complainant. The learned tribunal member refused to issue a witness notice to Mr Turner on that basis. It was reasonable for her to do so."

1. This ground is limited to an attack on the statement made by his Honour that the appellant did not dispute the previous complaint. He argues that there has never been a complaint made against him by anyone concerning conduct of that nature, and denies therefore that he has failed to dispute any such allegation. This may well be the case, but the point of substance made by the primary judge was that it was reasonable for the tribunal member to refuse to issue the notice because the evidence which the appellant proposed to elicit from Mr Turner was irrelevant to the determination of the inquiry. His Honour was clearly right about this, and the appellant has not argued otherwise. There is no merit in this ground.

Grounds 5 and 6 - The discontinuance of the complaint

1. At the commencement of her reasons, the tribunal member listed what she described as "a number of background facts and circumstances.....not in dispute". The list included a fact relevant to the complainant's reaction when she first learned that her employer had made a formal complaint to Toll about the appellant's conduct. The complainant's evidence was that she first learned that the complaint had been communicated to Toll when she was contacted by the state manager advising her that a representative from Toll was present at the store and wanted to take a statement from her. When she enquired about the reason for that, she was informed about the complaint. Her evidence was that she immediately became upset to learn that this complaint had been made, informed the manager that she did not want to make a complaint and that she would not make a statement. There was other evidence which established that on the same day, the appellant's wife had telephoned the store attempting to make contact with the complainant, but had not been able to do so and had spoken to another Sanity employee. The complainant's evidence was that she was not made aware of this telephone call until "a couple of days" later. She certainly did not know about it before she first expressed her wish that the complaint be discontinued.
2. The tribunal member's recitation of undisputed facts included the following:

"Following the contact from Mrs Higgins, the complainant asked for the complaint to be discontinued."

1. In the appeal before the primary judge, the appellant complained about the obvious error in this statement. It implies that the complainant discontinued the complaint because of the telephone call from the appellant's wife. As already discussed, this was not the complainant's evidence and although the two events occurred on the same day, in close temporal proximity, there was no causal connection between them.
2. The primary judge acknowledged that the statement was "misleading", but indicated that the incorrect linkage between the telephone call from the appellant's wife and the decision to discontinue the complaint "has no significance at all". His Honour noted that the real point of the evidence was that the complainant immediately told her manager that she did not want to make a complaint, and that this was correctly recorded by the tribunal member.
3. The primary judge is patently correct about the error being of no significance in terms of the tribunal member's determination of the inquiry. Before this Court, the appellant did not suggest to the contrary. His concern seems to be that his wife has been incorrectly blamed for the complainant's decision to not proceed with the complaint.
4. The factual error in the tribunal member's statement is acknowledged. However, it had no bearing on the determination of the inquiry, and does not constitute an error which can lead to any form of appellate relief. There is no merit in this ground.

1. This ground concerns a theory advanced by the appellant to the Tribunal and the primary judge, that the allegations against him had been fabricated by senior management of Toll in order to justify the termination of their contract with him. In an attempt to provide some support for this theory, he relied on evidence, including from the complainant, that the partner of the state manager of Sanity was employed by Toll. The primary judge observed that the tribunal member had overlooked this evidence when she found that there was no evidence of any relationship at all between staff at Toll and staff at Sanity. However, his Honour concluded that the evidence was of no significance and did not support the appellant's theory.
2. I agree with the primary judge. There was no evidence which provided any basis for a finding that Toll had acted in the manner asserted by the appellant. I agree with the primary judge's conclusion that this theory is pure speculation.
3. This ground has no merit.

1. This ground is based on an assertion by the appellant that the tribunal member approached the relevance of the age disparity between the appellant and the complainantin contradictory ways in her decision. In respect of this ground, it is sufficient to set out the primary judge's discussion of it:

"69 The appellant's sixth submission in relation to this ground concerns the learned tribunal member's rejection of the argument that his conduct constituted prohibited conduct contrary to s 17(1) of the Act. The complainant's counsel had submitted that the appellant's conduct contravened that provision, implying that it offended, humiliated, intimidated, insulted or ridiculed the complainant on the basis of her age and/or her gender. In her reasons at [271], the learned tribunal member said:

'It is not readily apparent how the conduct complained of was done by reference to the attributes of [sic] age or gender. The only connection identified was that the complainant was in fact female and younger than the respondent. This is not sufficient to establish the necessary connection.'

70 The appellant submitted that this was inconsistent with a finding at [270], where the learned tribunal member took into account the age disparity. That paragraph reads as follows:

'The Tribunal is also comfortably satisfied that a reasonable person, having regard to all the circumstances, including the age disparity between the complainant and the respondent, that the complainant had not discouraged the behaviour engaged in by the respondent and had asked him to cease calling her Juicy Lucy, such that a reasonable person would have anticipated that the complainant would be offended and/or humiliated by the behaviour.'

71 There is no inconsistency. Section 17(1) would have been contravened if the appellant had made offensive or insulting remarks about the complainant being young or female. That is not what he did. But in deciding whether he had sexually harassed the complainant, it was relevant for the learned tribunal member to take into account the difference in their ages when considering whether a reasonable person would have anticipated that the complainant would be offended or humiliated."

1. The primary judge is clearly correct. As the tribunal member found, there was an insufficient causal connection between age and the conduct relevant to s 17(1) to justify a finding under that sub-section. However, age disparity was relevant to the question of whether requirements of s 17(3) were satisfied, in particular whether a reasonable person, having regard to all of the circumstances, would have anticipated that the complainant would be offended or humiliated by the relevant conduct. This conclusion informed the finding under s 17(2) as to sexual harassment. The references to age disparity relate to different issues.
2. There is no merit in this ground.

1. These grounds attack specific aspects of the tribunal member's assessment of compensation.
2. The first argument relates to a comment made by the tribunal member after she had calculated compensation in the aggregate sum of $45,000. After stating the award of compensation, she went on to say:

"Such an award is reflective of the need to advance public policy behind the Act and discourage breaches of its provisions. It also recognises the extent of the injury incurred by the complainant, particularly as a consequence of the aggravating conduct engaged in by the respondent subsequent to his behaviour being exposed to his employers".

1. The appellant argued to the primary judge and this Court that the first sentence indicates that the tribunal member's assessment of the award included a punitive element. As the primary judge noted, the Tribunal does not have power to award compensation on a punitive basis: Burton v Houston [2004] TASSC 57. However, his Honour noted, correctly in my view, that when taken in context, the impugned comments simply reflect the underlying policy of the legislation which is to discourage prohibited conduct, including sexual harassment. It is patent from the tribunal member's reasoning and careful approach to the assessment of compensation, including consideration of several comparative decisions, that she was well aware that punishment was not a proper basis for the assessment of compensation. Her comment was a general one, intended to reinforce the policy of the Act. There is no merit in this argument.
2. The second argument repeats an earlier submission made in respect of the credibility of the complainant concerning the frequency and number of times that she saw her general practitioner. The appellant argues that there is a discrepancy and, accordingly, this undermines the basis upon which the tribunal member assessed the impact of his conduct.
3. As has already been noted, there is little if any discrepancy between the records of the general practitioner and the complainant's evidence. In any event, this is not a matter which could possibly have had a determinative impact on the tribunal member's assessment of compensation. The evidence was overwhelming that the appellant's conduct had had a significant impact on the complainant. The award of compensation was a relatively modest one in the circumstances. There is no merit in this argument.
4. These grounds should be rejected.

1. The gravamen of this ground is an assertion that the complainant received compensation from Toll in respect of this complaint pursuant to a compromise entered into prior to the commencement of the inquiry, and that the tribunal member had erred in not identifying this or taken it into account in the assessment of compensation. This argument was also made to the learned primary judge. His Honour's response to the argument was as follows:

"87 It is common ground that the complainant made complaints to the Anti-Discrimination Commissioner about both the appellant and Toll, and that the complaint against Toll was discontinued before the tribunal hearing. There was no evidence before the learned tribunal member as to whether or not the complainant had received any compensation from Toll. The appellant could have asked her about that in cross-examination, but did not. In his written submissions to the tribunal, the appellant said, 'It should be noted here that Ms Orchard has already had a settlement from Toll.' No further comment was made about any such settlement. I have no evidence as to what amount, if any, the complainant received from Toll, nor did the learned tribunal member.

88 This ground can only succeed if the learned tribunal member, whose role was to conduct an 'inquiry', had an inquisitorial duty that required her to find out what amount, if any, the complainant had received from Toll."

1. After engaging in a comprehensive analysis of relevant legislative provisions and case law concerning the nature of the inquiry, his Honour concluded that the tribunal member was not under a duty "to enquire as to the existence and nature of the asserted settlement". It was common ground that, in written submissions to the Tribunal, the appellant had made a comment that the complainant had received a "settlement from Toll" which the primary judge noted "was made in a single sentence in the middle of 21 pages of generally unmeritorious submissions". The primary judge's point was that it was therefore understandable that the tribunal member would have overlooked this information, and had no further obligation to make enquiry.
2. In my view, the learned primary judge has misapprehended the significance of this issue. His Honour's consideration of the duty on the tribunal member to enquire concerned cases dealing with the nature of an inquiry and whether a person conducting the same has a general duty to seek out evidence not presented to her by the parties. However, as I will demonstrate, the information concerning Toll's compromise with the complainant has a particular legislative context and significance. I am of the view that this information, at the very least, ought to have been the subject of enquiry by the tribunal member and it may well be that this knowledge was imputed to her in any event. Further, the fact of the compromise and the payment made under it was relevant to the assessment of compensation for the purpose of an order against the appellant pursuant to s 89(1)(d) of the Act.
3. The starting point of this consideration is the nature and basis of the Tribunal's jurisdiction to conduct the inquiry. That jurisdiction arises from the referral by the Commissioner to the Tribunal of a complaint pursuant to s 78 of the Act. It is clear from that and subsequent provisions that it is "the complaint" which is referred for inquiry, and it is that document which prescribes the ambit and subject matter of the inquiry. The power of the Tribunal to make orders after an inquiry, including for the payment of compensation, arises only if it finds "that a complaint is substantiated". (See s 89).
4. Section 62 prescribes the form of a complaint. The provision includes a requirement that a complaint is to identify "the person, class of persons or organisation" against whom the complaint is made. It is apparent from other provisions of the Act that the complaint can be made against more than one respondent. For example, s 59A provides that a complaint "includes a part of a complaint and, if a complaint relates to more than one respondent, any part of the complaint that relates to a specific respondent". I will say more about this provision shortly, but it clearly contemplates the possibility that a complaint may relate "to more than one respondent".
5. Part 6, in which these provisions are found, sets out generally the process for the determination of a complaint. A brief summary of that process is as follows:
   • By s 64(2), a complaint once made must be accepted or rejected by the Commissioner within a specific time. The Commissioner may reject the complaint on various bases, which include that it is trivial, vexatious, misconceived or lacking in substance. See s 64(1). Section 59A was introduced in 2014 and has the effect of permitting the Commissioner to, in effect, divide a complaint into parts for the purpose of acceptance or rejection. Prior to the introduction of that amendment, it was considered, at least by the Tribunal, that a complaint could only be rejected if every aspect of it fell within the bases of rejection contained in s 64(1).
   • Section 69 provides that the Commissioner is to investigate an accepted complaint. By s 65A, the Commissioner may before the completion of such an investigation, amend the complaint including by naming a respondent who has not been identified in it. This provision confirms that a complaint can relate to more than one respondent.
   • By s 71(1), the Commissioner, on the completion of an investigation, is to determine that the complaint:

(a) be dismissed on the basis of one or more grounds specified in the provision; or > > (b) is to proceed to conciliation; or > > (c) is to proceed to an inquiry.

• By s 78, the Commissioner is to refer the complaint for inquiry by the Tribunal if the Commissioner believes the complaint cannot be resolved by conciliation, or conciliation has been attempted but has not been successful, or the Commissioner believes the nature of the complaint is such that it should be referred for inquiry.
  • Section 79 provides that upon referral of the complaint for inquiry, the Commissioner is to provide the Tribunal with a report setting out, among other things, the issues raised in the complaint which remain unresolved, a description of the complaint, and any amendments that have been made to it. By implication, this information must include the identification of the respondents to the complaint. The report is known as the referral report.

1. It is clear from these provisions that it is the complaint so referred by the Commissioner which is to be the subject of the inquiry. The referral by the Commissioner of the complaint provides the jurisdictional basis of the inquiry. As will be apparent, the complaint at the point of referral will relate to the conduct described in the original complaint, subject to any amendment made by the Commissioner under s 65A, and any rejection or dismissal of a part of the complaint under ss 64 or 71 respectively. The respondent or respondents to the complaint at the point of referral for inquiry are those named in the complaint, subject to any rejection or dismissal, or joinder of an additional respondent under s 65A.
2. In this case, the complaint nominated both the appellant and Toll as respondents. The conduct complained about was that of the appellant, which was described in detail in a statutory declaration of the complainant annexed to the complaint. This conduct was reflected in the complainant's evidence at the inquiry, and ultimately found established by the Tribunal. The complaint against Toll did not allege any separate conduct in contravention of the Act, but rather asserted a failure on its part to comply with obligations arising under s 104 in respect of the appellant as its agent. The said obligations include ensuring that an agent is made aware of the prohibited conduct to which the Act relates and taking reasonable steps to ensure that the agent does not engage in such conduct. Under that section, an organisation that does not comply with the obligations prescribed by the section is liable for any contravention of the Act committed by its agent.
3. It is clear from the referral report that the Commissioner referred the entire complaint against both respondents to the Tribunal for inquiry. There had not been an amendment, nor had any part of the complaint been rejected or dismissed, prior to the referral. It follows that the Tribunal's jurisdiction was to conduct an inquiry into the entire complaint. This necessarily involved a consideration of the liability of each respondent for the asserted contraventions of the Act committed by the appellant.
4. It is obvious, however, from the record that the inquiry proceeded only in respect of the appellant. Toll was not represented and, as already discussed, there is no indication on the transcript that the tribunal member asked for or was given any explanation as to why the inquiry was not proceeding in respect of both respondents. The only information given to the primary judge at the hearing of the appeal by the complainant's counsel was that the complaint against Toll had been "discontinued". His Honour did not request any further information about this. As already noted, the appellant asserted that there had been a settlement but clearly did not know any of the details. The primary judge proceeded on the basis that he had "no evidence as to what amount, if any, the complainant received from Toll nor did the learned tribunal member".
5. The difficulty with his Honour's approach is that once a complaint has been referred to the Tribunal for inquiry, it cannot be unilaterally discontinued or withdrawn by a complainant without the approval of the Tribunal. Section 98A provides that a complainant may apply to the Tribunal to withdraw a complaint from inquiry, and that the Tribunal, after consideration of the application, may approve the withdrawal. Further, s 94 contains provision as to what is to take place if the parties to a complaint agree to resolve it while it is before the Tribunal for inquiry. The relevant provision is as follows:

(2) If the parties to a complaint agree to resolve the complaint whilst it is before the Tribunal for inquiry, the Tribunal is to record the terms of the agreement.

(3) The record of agreement is to be signed by the parties.

(4) An agreement is enforceable as if it were an order of the Tribunal under section 89(1)."

1. These provisions reflect similar provisions under s 76 concerning the procedure to be adopted if the complaint is settled while it is being dealt with by the Commissioner before referral to the Tribunal. They are also consistent with the inquisitorial nature of the Tribunal's jurisdiction. This legislative framework for the resolution of a complaint recognises that the Act is intended to promote a wider social purpose, and accordingly, although breaches of the Act will primarily concern the immediate parties, there is also a public interest in their proper investigation and determination. See comments of Kirby P in Haines v Leves (1987) 8 NSWLR 442 at 463. Although the inquisitorial system in anti-discrimination cases has been abandoned in some Australian jurisdictions, it still remains the cornerstone of the dispute resolution and enforcement provisions of this Act.
2. It is clear, therefore, that once a complaint is before the Tribunal for inquiry, a complainant cannot simply resolve and discontinue it privately, without compliance with these provisions. Further, where there is more than one respondent, if a complainant resolves the complaint or wishes to withdraw it in respect of one respondent only, it must follow that, as a matter of procedural fairness, the other respondent is entitled to be informed of, and if necessary heard in respect of any action taken under s 98A or 94. In the case of a resolution, this would mean that the remaining respondent should be provided with the record of the terms of the agreement.
3. During the hearing of the appeal, these provisions were raised by the Court with counsel for the complainant. Mr Mackie confirmed that Toll had entered into a compromise with the complainant after the matter had been referred to the Tribunal. Notwithstanding the said provisions, counsel persisted with a submission which reflected the approach of the primary judge, that is, that the Tribunal had not been presented with evidence of the terms of the settlement, including by way of cross-examination of the complainant by the appellant, and accordingly, the Tribunal was not obliged to take the compromise into account. As will be apparent from my discussion of the above provisions, this approach is erroneous. It was not up to the appellant to bring this information out. On the contrary, the clear effect of the provisions discussed is that upon resolution of the complaint against Toll, both the Tribunal and the appellant ought to have been informed of the terms of that compromise. In practical terms, the effect of s 94 is that the tribunal member conducting the inquiry can, in any event, be expected to have been aware of the terms of the settlement.
4. After discussion to this effect during submissions, the Court decided to call for and examine the Tribunal file. There was no objection to this course by either party.
5. The said file reveals that on 5 July 2019, some eight months before the commencement of the inquiry, the complainant's counsel, by email, advised the Tribunal that there had been a settlement between the complainant and Toll and provided the Tribunal with a copy of the deed of release signed by those parties. This advice complies with s 94 because the deed records the terms of the agreement. Those terms include that Toll was to pay the complainant the sum of $60,000 in order to resolve the complaint. There is a note in the deed to the effect that that payment is "to be characterised as general damages". In exchange, the complainant provided Toll with a full release from liability.
6. It is obvious from the file that at no time prior to this Court obtaining this information, was the appellant informed of this settlement or its terms. In fact, the deed contains a confidentiality provision and counsel for the complainant submitted to us that this provision justifies the failure to inform the appellant of the agreement and its terms. As already discussed, this submission is untenable. Such a provision cannot override the requirements of the legislation and the need for procedural fairness.
7. It is clear also that, in actual fact, the tribunal member was aware both that Toll was a respondent to the complaint at the time that it was referred for inquiry, and further that that complaint had been resolved by agreement. As has already been discussed in the context of the submissions made in respect of alleged gaps in the transcript, the complainant's counsel informed the Court of his recollection that he had told the tribunal member about the resolution of the complaint against Toll. There is no suggestion that the tribunal member made any further enquiry about the settlement, including to investigate compliance with s 94(2) and (3). In actual fact, the Tribunal had been informed of the terms of the compromise in accordance with this provision, when the complainant's lawyer sent the deed to it in July 2019 and accordingly, this information was available to the tribunal member well before the commencement of the inquiry.
8. The question for this Court, therefore, is not whether there was evidence upon which the tribunal member could act in respect of the settlement with Toll, but rather whether, and in what way, the compromise affects the assessment of compensation in respect of contraventions of the Act by the appellant.
9. It is well-established that the assessment of compensation under a provision in the nature of s 89(1)(d) is limited to that necessary to compensate the complainant for loss and injury established on the evidence to have been caused by the prohibited conduct. This approach is consistent with the express words of the provision, and has been confirmed by numerous judicial pronouncements. For example, in Burton v Houston, Blow J (as his Honour then was) reasoned from this premise that punitive or exemplary damages are not available as compensation under this provision. However, the same reasoning led his Honour to conclude that such compensation can include a component in the nature of aggravated damages. This is because the purpose of an award of aggravated damages is compensatory.
10. In this appeal, with the exception of the point raised under this ground, neither party has challenged the tribunal member's assessment of the quantum of compensation, either generally or in respect of the component in the nature of aggravated damages. It must be accepted, therefore, that the assessment correctly quantified the compensation applicable to the loss and damage suffered by the respondent both generally and on the basis of the aggravating factors. However, it is also clear that the tribunal member did not take into account the terms of the compromise between the complainant and Toll. The reasoning of the tribunal member in the assessment of compensation does not refer at all to Toll, and it is also clear from her reasoning that the quantum of compensation was intended to reflect the full loss and damage established on the evidence to have been suffered by the complainant as a result of the appellant's prohibited conduct.
11. The amount paid by Toll under the deed had the effect of compromising its potential liability to the respondent under s 104. As already noted, the complaint did not allege any conduct by Toll in breach of the Act other than that which gives rise to liability under that section for the prohibited conduct of the appellant. The complaint against Toll alleged its responsibility under s 104 for all of the appellant's conduct, including that which was taken into account by the tribunal member in the assessment of compensation in the nature of aggravated damages. This included an allegation that Toll had allowed the appellant to contact the complainant during its investigation of the original complaint. This allegation was capable of encompassing the defamation letter, which was central to the tribunal member's assessment of aggravated damages.
12. It follows that the sum of $60,000 payable to the complainant under the settlement was intended to compromise Toll's potential liability to pay compensation for the same loss and damage as that which provided the basis for the compensation assessed against the appellant. Toll's potential liability is similar, although not identical, to vicarious liability in tort. It requires proof of a breach of duty under s 104, but if the breach is established then it creates coordinate liability on the part of the organisation and the person who commits the contravention, for the contravention. Hence, both parties can be ordered to pay compensation for the loss and damage caused by that contravention. In this case, the fact that one respondent to the complaint had agreed to pay a sum in compensation for that loss and damage was clearly a matter which should have been taken into account by the tribunal member when determining what order to make, if any, under s 89(1)(d). This follows from the proposition that the fundamental basis for the award of compensation is to make good, as far as money can, the loss and damage suffered by the respondent as a result of the appellant's breaches. It is clear that the compensation should not exceed that assessed by the Tribunal as necessary to achieve that result, and the complainant "should not be compensated twice". See Elliott v Nanda & Commonwealth [2001] FCA 550 per Moore J. It follows logically, that a payment by one respondent will achieve some compensation for the loss and damage actually suffered by the complainant, and for that reason is a matter that must be taken into account when assessing the compensation payable by another respondent with coordinate liability for that loss.
13. That conclusion is sufficient to establish error on the part on both the tribunal member and the primary judge. The ground must be upheld. However, the question which then arises is how that error should be addressed by this Court. I am satisfied that the Court has power to return the case to the Tribunal for reconsideration in accordance with law but it also is entitled to redetermine the question of compensation. See s 47 of the Supreme Court Civil Procedure Act 1932 and r 693 and 704 of the Supreme Court Rules 2000. Both parties urged this Court to take the latter course in the event that the ground was upheld. It is appropriate that that occur. All of the information which would bear on the Tribunal's reconsideration of the quantum of compensation is now available to this Court.
14. The question which then arises is the manner in which such a payment should be taken into account in the assessment of a compensation order under s 89(1)(d) against the appellant. In analogous circumstances in respect of a civil claim for tortious liability, s 3(3) of the Wrongs Act 1954 would apply so that the release of or accord with a person who has suffered damage by one of several joint tortfeasors would reduce the claim of the injured person by the amount of the consideration paid for the release or the accord or to the extent that the tortfeasor would have been liable to make contribution towards the total claim, whichever is the greatest. Under that provision, the payment of $60,000 by Toll for a claim in respect of which the proper measure of damages is assessed at $45,000, would reduce the amount to be recovered from the appellant to nil. Toll would, however, have then been entitled to sue the appellant for contribution. The amount recovered by way of contribution would have required the court to consider the reasonableness of the settlement and, if excessive, fix a reasonable sum, and then determine what proportion of that sum should be recovered from the appellant. Any adjustment of the sum for this purpose would not, of course, affect the bargain struck in the compromise. The plaintiff would be entitled to keep the full amount paid under the compromise.
15. However, the statutory provisions and other principles relating to the assessment of damages in tort, including those relevant to apportionment and contribution between joint tortfeasors, are not directly binding on the Tribunal when assessing compensation under the Act. A complaint to the Commissioner in respect of a contravention of the Act does not equate to a cause of action in tort, and the Wrongs Act is not directly applicable. Commissioner of Police v Estate of Russell [2002] NSWCA 272; [2002] 55 NSWLR 232. While the principles applicable to tortious claims are useful as an analogy and a guide, ultimately, the measure of compensation must be determined in accordance with the terms of the legislation. See Hall v A & A Sheiban Pty Ltd [1989] FCA 72, 20 FCR 217. Although s 104, if applicable, will create coordinate liability for a contravention of the Act committed by the organisation's agent, in both the organisation and the agent, the Act does not expressly provide for apportionment of compensation between them. Nor does it contain express provision for a respondent who compromises its liability in these circumstances to seek contribution from another person with coordinate liability for the same contravention.
16. In my view, the question of what orders should be made under s 89(1), including for the payment of compensation under s 89(1)(d), is a matter entirely within the discretion of the Tribunal. The discretion is limited only by the terms of the legislation. Hence, as already discussed, the compensation must only be for what is necessary to compensate the complainant for actual loss and damage, and must not contain a punitive element. Further, the only order that is authorised is one that "the respondent pay (the compensation) to the complainant". This would seem to preclude power to order the payment of contribution between respondents. However, in my opinion, although there is no express provision for apportionment, there is no reason which would prevent the Tribunal, in an appropriate case, from notionally apportioning the compensation between respondents, and then ordering that each pay their respective share to the complainant.
17. If Toll had not settled with the complainant, then it would have been reasonable for the Tribunal to adopt that approach, and effectively apportion the compensation between the respondents. This would have been entirely a matter of discretion, having regard to the evidence adduced as to the conduct of each respondent, including that relevant to Toll's breach of its duty under s 104. However, because of the settlement, Toll did not participate in the inquiry and that question was therefore not agitated during it. Further, no finding was made against Toll concerning its alleged breach of duty under s 104. Notwithstanding this, Toll remained a respondent to the complaint, and the fact of the compromise and the quantum of the sum paid under it were relevant facts in respect of the exercise of discretion concerning the quantum of compensation that should be paid by the appellant.
18. In these circumstances, it was clearly within the discretion of the Tribunal to order that there be no further compensation paid by the appellant having regard to the amount of the compromise with Toll. However, in my view, the more appropriate order in this case is that the appellant be ordered to pay one half of the compensation assessed as appropriate by the Tribunal, which is a payment of $22,500. Although the payment of compensation is not intended to be punitive, the scheme of the Act also envisages that payment of compensation will be borne by those who have contravened its provisions. The legislation is remedial in nature, and "is intended to establish a regime to dissuade, discourage and prevent" prohibited conduct. Commonwealth v Anti-Discrimination Tribunal [2008] FCAFC 104, 248 ALR 494 per Kenny J at 530. It is consistent with this general purpose that the burden of compensation for contraventions of the Act should be borne by those with liability for such contraventions in just and equitable proportions. It would be contrary to the legislative purpose if the person primarily responsible for the contravention, is completely relieved from paying appropriate compensation only because the complainant has successfully negotiated a generous settlement with another respondent. The fact that the actual liability of Toll for compensation may have been less than that agreed if it had proceeded to hearing has nothing to do with the responsibility of the appellant to pay a fair share of the compensation. In assessing that share, it is, of course, necessary to take into account that the complainant has already received a significant sum from Toll, but in my view, the mathematical approach adopted by the Wrongs Act in respect of tortious liability will not always be appropriate in anti-discrimination cases. It seems to me that an order which reflects each respondent bearing an equal share of the compensation represents a just and equitable outcome in the particular circumstances of this case.
19. The final matter I wish to deal with is an argument by the complainant's counsel that because the payment by Toll was characterised in the deed as "general damages", that it should not affect the assessment of "aggravated damages" and that that component of the compensation is not affected by the settlement. I reject that argument. The term "general damages" does not have a settled or technical meaning, and more often than not is used to distinguish damages for pain and suffering from "special damages" in a case involving tortious liability. There is nothing in the deed or in any other evidence to indicate that the parties to the settlement were intending to leave open liability for aggravated damages. On the contrary, the deed secures a complete release for Toll from all liability to the complainant. Further, as already noted, aggravated damages are compensatory in nature. I return to the fundamental purpose of an award under s 89(1)(d) which is to compensate the complainant for loss and injury suffered by her as a result of the appellant's contravention. The compensation calculated by the tribunal member took into account the aggravating factors. The compromise related to Toll's potential coordinate liability for this conduct. It is appropriate that it is taken into account in respect of the entire award of compensation.
20. Accordingly, I would uphold ground 13 and order as follows:

1 The primary judge's order dismissing the appeal from the Tribunal is set aside.

1. The order of the Tribunal requiring the appellant to pay the complainant the sum of $45,000 by way of compensation is set aside, and replaced with an order that the appellant pay compensation to the complainant in the sum of $22,500.

1. I agree with the reasons for judgement enunciated by Brett J and with the orders he proposes.
2. There is a brief matter I wish to add relevant only to the reconsideration of the quantum of compensation. The failure of the tribunal member to consider the payment made by Toll in the assessment of the quantum of compensation now creates a quandary for this Court in the application of some of the fundamental purposes and intents of the legislation. A just resolution requires, in my view, a pragmatic approach.
3. An important purpose of the legislation is to make good the loss suffered as a consequence of the prohibited conduct, but there should not be a punitive aspect associated with the rectification of the loss. Equally, there is a need to dissuade non-compliance with anti-discrimination laws by holding those who breach them to account, not as a punishment, but by way of imposing upon them a responsibility to make good the loss or injury they have created. Here, it is apparent from the reasoning of the tribunal member that the quantum of compensation she ordered was intended to reflect the full loss and damage established on the evidence to have been suffered by the complainant as a consequence of the appellant's conduct. Arguably then, a strict application of the first purpose to which I have referred, would necessitate a conclusion that the amount paid by Toll fully compensated the loss and injury caused by the appellant's conduct. But such a conclusion would ignore completely the second equally important purpose and intent of the legislation, namely holding the appellant responsible for his behaviour and thereby encouraging his future compliance with the Act.
4. It is reasonable to assume, if Toll had not settled but had participated in the inquiry, the tribunal member may well have made an order apportioning liability for the payment of compensation between the appellant and Toll. It is difficult to comprehend that the appellant's contribution would have been less than that attributed to Toll, given it was his behaviour that was primarily responsible for the contravention of the Act. To not hold the appellant to account for his contravening behaviour, by way of requiring him to make good the loss would, in my view, be a most inappropriate outcome. It would undermine the intent of the Act in imposing responsibility upon contravening parties. It is a fair, equitable and practical outcome that the appellant bear payment for an equal share of the compensation. To my mind, that outweighs any concern as to the total compensatory monies paid.
5. For these reasons, and those expressed by Brett J, I agree with the orders proposed.

1. I agree that the appeal should be allowed for the reasons given by Brett J and with the orders his Honour proposes. I also agree with the additional reasons of Jago J.