Hughes trading as Beesley and Hughes Lawyers v Hill

Was the harassment sexual? - Ground 1A 18 Ground 1A involved a contention that the learned primary judge had erred in finding that the Appellant's conduct towards the Respondent constituted a sexual advance, conduct of a sexual nature, sexual harassment and a breach of s 28B of the Sex Discrimination Act 1984 (Cth) ('the SD Act'). As will be seen, however, the challenge brought by the Appellant was not to the conclusion that the Appellant's conduct found by the trial judge had occurred but rather to whether it could be characterised as sexual. To be clear, the Appellant did not seek to displace any of the findings made by the trial judge about what the Appellant had done. His point was not that his conduct towards the Respondent might not have been harassment (a contention forensically open to him); only that it was not sexual harassment. 19 By s 28B(1) of the SD Act, it is 'unlawful for a person to sexually harass: (a) an employee of the person'. Section 28B(1) is contained in Div 3 of Pt II of the SD Act which is entitled 'Sexual harassment'. The reference to Pt II is significant. Along with several other misbehaviours, conduct which is unlawful under Pt II of the SD Act is included within the definition of 'unlawful discrimination' in s 3 of the Australian Human Rights Commission Act 1986 (Cth) ('the AHRC Act'). Consequently, a person who sexually harasses their employee engages in 'unlawful discrimination' under the AHRC Act. By s 46PO(4) of the AHRC Act the Federal Circuit Court is empowered, if satisfied 'that there has been unlawful discrimination by any respondent' to make certain orders including, relevantly by subs (d), an order requiring the respondent to pay the applicant 'damages by way of compensation for any loss or damage suffered because of the conduct of the respondent'. The Federal Circuit Court's jurisdiction may not be exercised until certain preconditions relating to initial proceedings before the Commission have been satisfied but there is no debate in this case that those requirements were satisfied. 20 It follows that if the Respondent was successful in demonstrating that the Appellant had sexually harassed her under s 28B(1) of the SD Act then the power of the Federal Circuit Court to award her damages was enlivened. Section 28A provides a definition of what constitutes sexual harassment for the purposes of s 28B(1) (and other provisions in Div 3). Section 28A is as follows: 28A Meaning of sexual harassment (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 the possibility that the person harassed would be offended, humiliated or intimidated. (1A) For the purposes of subsection (1), the circumstances to be taken into account include, but are not limited to, the following: (a) the sex, age, sexual orientation, gender identity, intersex status, marital or relationship status, religious belief, race, colour, or national or ethnic origin, of the person harassed; (b) the relationship between the person harassed and the person who made the advance or request or who engaged in the conduct; (c) any disability of the person harassed; (d) any other relevant circumstance. (2) In this section: 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. 21 There are essentially three elements to this provision. 22 First, the Court is directed by subs (1) to ask itself whether there has been any of three identified forms of conduct: a sexual advance, a request for sexual favours or other conduct of a sexual nature. Each of these concepts involves the application of a defined legal standard to the facts as found. The Court must determine, on those facts, whether there was a sexual advance, a request for sexual favours or other conduct of a sexual nature. It is a question for the Court and it is a question of fact. In determining whether there has been conduct of a sexual nature the Court applies, of course, the definition of that term in s 28A(2). 23 Secondly, if an identified form of conduct is established subs (1) also requires that it must be 'unwelcome' to the person allegedly harassed. This is a question of fact which is subjective and which turns only on the allegedly harassed person's attitude to the conduct at the time. Even if the Court has concluded under the first limb that one person has engaged in conduct of a sexual nature towards another person, this will not constitute sexual harassment under the provision if it was not actually unwelcome in this sense. Ordinarily this will be proved by the person allegedly harassed giving evidence that the conduct was unwelcome but that mode of proof is not dictated by the statute and proof of this fact, like proof of any other fact, may be done by a variety of means. In some cases, I suspect this is one, the unwelcome quality of the conduct will be painfully obvious. 24 Thirdly, once it be established that there was conduct of a sexual nature towards another and that the conduct was unwelcome, the provision imposes an objective delimitation on the provision's ambit. The 'circumstances' must be such that a reasonable person would have anticipated the possibility that the person allegedly harassed would be offended, humiliated or intimidated by the conduct. The 'circumstances' are defined broadly in s 28A(1A) and include, importantly for this case, the relationship between the harasser and the harassed. 25 The objective standard imposed by the provision does not relate to the first two issues. The objective question is not whether a reasonable person would regard the conduct as being sexual in nature (as defined) for that is a threshold question the Court determines for itself. Nor is the objective standard applied to the question of whether the person allegedly harassed ought to have regarded the conduct as unwelcome, for that is an issue to be determined by reference to the actual state of mind of the person. Instead, the objective standard is applied to a new issue - that of whether a reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated. 26 In answering this question, the reasonable person is assumed by the provision to have some knowledge of the personal qualities of the person harassed. The extent of the knowledge imputed to the reasonable person is a function of the 'circumstances' which the provision requires be taken into account. Mention has already been made of the nature of the relationship between the harasser and the harassed. It is convenient also to note that the circumstances will include any disability the harassed person is suffering from (subs (1A)(c)) as well as matters such as sex, age, religious belief or sexual orientation (subs (1A)(a)). But the list in subs (1A) is merely inclusive so that other unspecified but relevant circumstances may also be taken into account. The canvas is broad. 27 Equipped then with that information, the question to be asked is whether the reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated. Each of these is different in kind and it should not necessarily be thought that they are arranged in order of seriousness. It may, in some cases, be worse to be deeply offended than it is to be slightly humiliated. 28 The Appellant's submissions about Ground 1A were that the trial judge had erred in thinking that his conduct towards the Respondent was sexual in nature. The Appellant's Senior Counsel drew a distinction between two different uses of the word 'sexual'. On the one hand, 'sexual' could denote, that 'which transpires between persons (or other creatures) of a different biological sex'; on the other hand, it could mean that which was done for the purposes of sexual gratification regardless of sex (scil. gender). Senior Counsel proffered as an example of the first meaning of the word 'sexual' the relationship between Mr Darcy and Ms Bennet in Pride and Prejudice 29 On the other hand, the Appellant's second use of the word 'sexual' is explicit in taking in the pursuit of sexual gratification, and unlike the suggested first sense of the word 'sexual', the Appellant was content to allow that this behaviour could occur between persons regardless of their gender. 30 In this case Senior Counsel did not seek to dispute that the Appellant had sought to establish a romantic relationship with the Respondent and indeed, in his written submissions, it was explicitly accepted that the Appellant had sought to establish what Senior Counsel submitted was an 'intimate relationship'. The submission shied away from a thorough exploration of what an 'intimate relationship' might have entailed but, regardless, it was submitted that the Appellant's intentions were 'strictly honourable'. It was then submitted that the central question was the objective question posed by s 28A which turned on whether a reasonable person would have anticipated the possibility that the Respondent would be offended, humiliated or intimidated. 31 However, this makes no sense. The Appellant's argument is directed at showing that the overtures the Appellant made to the Respondent were not sexual in nature. That is a factual question for the Court and has nothing to do with the objective question of whether a reasonable person would have anticipated the possibility that the conduct would lead to the person being offended, humiliated, or intimidated. Indeed, that question takes as its point of departure the fact that there has been conduct of a sexual nature. Senior Counsel for the Respondent was correct to observe that the Appellant's submission had conflated the third element of s 28A(1) with the first. 32 She was correct because the proposition that the Appellant's intentions were honourable goes to the issue of whether the harassment was sexual or otherwise; it does not go to whether the behaviour was objectively offensive, humiliating or intimidating. Short reflection shows why: it is possible for non-sexual harassment to be intimidating. For example, in this case the Appellant at one point threatened the security of the Respondent's employment in a thinly veiled fashion. Accepting for the sake of argument that his Mr Darcy point is right, this would not make this kind of behaviour other than intimidating. 33 The Appellant's submissions on this point therefore do not make any sense. Doing the best alchemically to make sense from the nonsensical, I propose therefore to treat the submission as instead a submission that the harassment which occurred was not sexual harassment. Having adjusted the taxonomy of the Appellant's argument to reflect the textual realities of s 28A(1) (readily ascertained, if I may respectfully observe, by the onerous act of reading it), it is then useful to turn to why the Appellant submits that there was nothing sexual about his conduct. 34 The Appellant submitted that when the evidence was examined it could be seen that all he had done was to make expressions of love and affection and to evince a desire to pursue a romantic relationship. His intentions were, so it was submitted, 'honourable'. When the Appellant, therefore, had sent the Respondent his email in which he said that he had 'a need in me for intimacy' this was ambiguous and could have been a reference to emotional, intellectual or physical intimacy. Further, whilst it was true that he had written the Respondent another email in which he expressed a desire to be her lover, this could have been a reference to the Appellant desiring to be a 'platonic lover' or 'something else'. Given the gravity of finding that these utterances were sexual, so went the argument, it could not be concluded, in light of that ambiguity, that they were sexual in the requisite sense. It was consistent with that conclusion, so said Senior Counsel, that the only actual physical intimacy which occurred between the Appellant and the Respondent took place when the Appellant had expressed his desire to the Respondent for a 'cuddle' or a 'hug'. Of course, that paints but half the ugly picture. The satisfaction of his expressed desire for a 'hug' was found by the trial judge to have been coerced from the Respondent in exchange for him giving up his blockade of the exit to her office. 35 Even so, Senior Counsel for the Appellant submitted that it had never been suggested that the hugs were not consensual. There was therefore 'no' evidence that the Appellant had targeted the Respondent 'sexually as a woman' or as his employee. Thus whilst the trial judge had found that the Appellant had made numerous sexual advances, this was a finding that was simply 'not reasonably open' on the evidence and this was because 'objectively, the communications and conduct of Mr Hughes toward Ms Hill were romantic in nature'. 36 In assessing the submission it is useful to begin with some matters which are not in dispute. It is not in dispute that in July 2015 the Appellant and the Respondent travelled to Sydney for work and stayed with the Appellant's brother. It is not in dispute that whilst on this work trip the Appellant, altogether without invitation, entered the Respondent's room, lay in wait for her on a mattress dressed only in his underwear and when she arrived asked if he could stay. It is not in dispute that the Respondent said no, he could not. It is not in dispute that the Appellant required the Respondent to give him a hug before he would leave her room. It is not in dispute that the next day he entered her room again whilst she was having a shower. It is not in dispute that he waited for her to come out of the shower and that when she did she was wearing only a towel. It is not in dispute that he asked if he could stay once more. 37 Amongst the long and sorry catalogue of the Appellant's emails to the Respondent, it is not even now in dispute that he sent her one particular email explicitly asking her to become his lover. It is not in dispute that the Appellant admitted under cross-examination that by that very statement he had, in part, been referring to a sexual relationship. 38 The trial judge found that these tawdry events constituted a single composite sequence which was, in effect, a determined quest to have a sexual relationship with the Respondent. I agree. One cannot divorce the unsettling form of the Appellant in his underwear from his email protestations of love or from his request that the Respondent should be his lover or from his ghostlike practice of hovering in doorways until dispelled by a hug. They were all of the same piece. 39 The trial judge came to the clearest view that this overall pursuit was sexual. His Honour was correct. It is not to the point therefore that some of the emails, viewed in isolation, may perhaps be characterised as being merely pure protestations of love. Their quality as such is altogether denied by the 'relationship' which had by then developed between the Appellant and the Respondent (a mandatory circumstance to be taken into account under s 28A(1A)(b)). 40 Consequently, I reject the submission of Senior Counsel for the Appellant that these were the actions of a Mr Darcy. The facts of this case are about as far from a Jane Austen novel as it is possible to be. Nor can I accept Senior Counsel's submission that one should infer that the Appellant only wished to be the Respondent's 'platonic' lover. 41 In that circumstance, there is no need to assess the correctness of the Appellant's contention that misguided but lofty-minded romantic conduct cannot constitute sexual harassment. It is not necessary because the facts of this case do not involve misguided but lofty-minded romantic conduct. Cases such as Spencer v Dowling [1997] 2 VR 127 and Aleksovski v Australia Asia Aerospace Pty Ltd [2002] FMCA 81 might well suggest that repeated, written declarations of love may on their own constitute sexual harassment. But this case involves much more than that. Wherever may lie the frontiers of the juristic conceptions in s 28A(1) of the unwelcome sexual advance or unwelcome conduct of a sexual nature, they comfortably enclose the shabby state of affairs in which a man gains access to his female employee's bedroom dressed only in his underwear. The trial judge described some aspects of the Appellant's evidence as 'delusional'. I regret that the same may be said of this aspect of the appeal.

Should the award of aggravated damages be set aside? -Grounds 3 and 4 54 The trial judge awarded the Respondent $50,000 in aggravated damages to reflect (a) the threats the Appellant made to the Respondent to prevent her from making a complaint about his sexual harassment; and, (b) the manner in which he conducted the trial. 55 The Appellant submitted that the trial judge had blurred the distinction between aggravated damages, on the one hand, and punitive or exemplary damages, on the other. The Appellant accepted that both kinds of damages might spring from the same kind of conduct, that is to say, acting with contumelious disregard for a plaintiff's rights in an insulting or high-handed way or with malice. But it was submitted that aggravated damages remain compensatory so that the relevance of the high-handed conduct in the assessment of aggravated damages was only as a pointer to the increased suffering of the plaintiff. 56 This blurring was said to have resulted in two errors. First, the trial judge had been wrong to conclude that the Appellant had acted in a manner that could support an award of aggravated damages. Secondly, even if the trial judge had been right so to conclude, he had erred in concluding that this behaviour had increased the suffering of the Respondent. 57 I would not be disposed to accept the first argument. One reason for this is that the submission did not descend into any detail, preferring to rest itself upon the claim that the evidence did not support the finding without any hint as to what the evidentiary defect might be. It was a flourish detached from the actual work of reading the evidence and making a submission. The trial judge's findings, on the other hand, were quite clear. The Appellant had sought to dissuade the Respondent from complaining about him. To reach this conclusion the trial judge quoted the Appellant's own words. He recited the Appellant's emails where he had told the Respondent that he had been very careful not to harass her and that the fact that he was expressing his feelings to her did not mean he was harassing her. Then the trial judge set out the Appellant's request of the Respondent that she 'assure me you will not make a complaint or sue me' followed by: 'I always fight the good fight btw'. 58 The trial judge interpreted this as a threat. On appeal Senior Counsel submitted that it was hard to see how the trial judge had arrived at this view. I do not discern the slightest difficulty. It is plain that it was a threat. To that one might add that it was a threat made by an experienced lawyer to a less experienced employee whose employment options were limited and who, to his knowledge, was suffering from an anxiety disorder. 59 Could this support an award of aggravated damages? The trial judge was correct to conclude that it could. It was an attempt to deter the Respondent from seeking protection under the SD Act. It was bullying. It was dishonourable. It was a serious matter. 60 But the trial judge did not base his conclusions solely on this threatening behaviour. He was also appalled by the manner in which the Appellant had conducted his defence at the trial. He noted that the Appellant had frequently given untrue evidence during the trial but he did not think that the fact that the Appellant told lies would be a sufficient basis in itself to award aggravated damages. At [260]-[265] the trial judge said this: As appalling as [giving false evidence] is, it is not conduct that would warrant an aggravation in the damages. But there are other aspects of the way in which the Respondent has conducted himself in these proceedings that would be immensely distressing to the Applicant. One of the more despicable acts in which the Respondent has indulged, is that he has used information that he gleaned whilst acting as her "legal representative" for the sole purpose of blackening the name of the Applicant in these proceedings. In his statement/affidavit in these proceedings, the Respondent discloses information about the mediation proceedings. The Respondent claims that the Applicant said certain things in the mediation. The Respondent claims that he discovered later on that what he recalls the Applicant saying, in the mediation, could not be right. At paragraph 75, 76 and 77 of his statement, he then makes the claim that the Applicant has lied. None of that had any relevance to a defence against the claim of sexual harassment and this would be known to the Respondent notwithstanding his many deficits as a lawyer. The sole purpose of including this material was an attempt to silence or bully the Applicant by defaming her character and blackening her name. But the Respondent must have known that this information was privileged and, before he could disclose any of it, he would have to do have asked the Applicant to waive that privilege. He did not do this. In that same statement, the Respondent makes veiled allegations as to the unfitness of the Applicant to be a mother. Again, none of this was relevant to defending a claim of sexual harassment. 61 To say that this conduct during the trial is reprehensible would be an understatement. I do not accept that there was any error in the trial judge concluding that this lamentable episode was sufficient, in principle, to enliven an entitlement to aggravated damages. I am supported in this conclusion by cases such as Ewin v Vergara (No 3) [2013] FCA 1311; 307 ALR 576 at [678] and Clarke v Nationwide News Pty Ltd t/as Sunday Times [2012] FCA 307; 201 FCR 389 at [349], where it was expressly contemplated that the manner in which a party conducted its case could enliven an award of aggravated damages. It is a well-established principle. 62 I do not accept the Appellant's final submission that even if his conduct was in principle sufficiently egregious to enliven an award of aggravated damages, nevertheless, the trial judge had erred in awarding damages of that kind because there was no evidence that the Respondent's suffering had been increased either by his warning to the Respondent not to complain or by the conduct of his defence at the trial. 63 The question is whether there should be additional compensation to the Respondent for her injured feelings because her sense of injury resulting from the sexual harassment has been heightened by the manner in which the Appellant sought to dissuade her from complaining and the manner in which he conducted his defence: Wotton v Queensland (No 5) [2016] FCA 1457; 352 ALR 146 at [1731]-[1735]. The trial judge was correct to conclude that an award of aggravated damages was appropriate. To have suffered the Appellant's sexual harassment in the first instance was psychologically damaging to the Respondent. To deal thereafter with his menacing behaviour, as her employer, must have been a terrible experience for a woman in her position. To have suffered the final indignity of watching the Appellant divulge her confidential information in his own defence, in gross dereliction of his professional duty, can only have made her realise that she was in the ring with a disturbed, self-centred and venomous man. He had threatened that he knew how to 'fight the good fight' and he carried that threat out even to the extent of conduct which must surely soon end, if it has not already ended, his career as a lawyer. His actions during the trial included: The use of the Respondent's confidential materials which he agreed under cross-examination he knew to be wrong. The trial judge found that he had done this for the purpose of blackening her name. He had alleged that the Respondent had been sexually abused as a child to blacken her name. He had sought to blame the Respondent for his own conduct by asserting that she had behaved coquettishly by retrieving something from a cupboard, wearing perfume or a particular dress. 64 I see no error in the trial judge's award of aggravated damages. If error had been shown and it had fallen to this Court to consider the appropriate award of aggravated damages I would have concluded that a larger award was appropriate. I reject the submission of Senior Counsel - apparently seriously advanced - that the Appellant was engaging in a legitimate litigious process of attacking the witness' credit and that to interpret the matter as an attempt to blacken her name is to 'put the worst possible construction' on it. In my view, the trial judge was entirely correct in his assessment of the Appellant and in that context his language was appropriate. The 'worst possible construction' was the correct one.

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