Kirkland v Wattle

REASONS FOR JUDGMENT 1 This is an appeal from a decision of a magistrate awarding damages pursuant to s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). The unlawful discrimination complained of is as defined in s 3 of the Act, namely conduct rendered unlawful pursuant to Part II of the Sex Discrimination Act 1984 (Cth). The relevant definition is of the term "unlawful discrimination" and not that of the term "discrimination" which does not apply for the purposes of s 46PO. 2 The award of damages was made against the present appellant. The proceedings had been brought against him and his wife, Daphne Geraldine Kirkland, trading as Kirk's Radio Cab. However the magistrate found that a company, Kirk's Enterprises Pty Ltd owned that name and was trading under it. He concluded that the company was the respondent's employer. Mr and Mrs Kirkland were directors. The claim against Mrs Kirkland was dismissed. 3 I need not rehearse in great detail the facts of the case save to say that the complainant, the present respondent was employed by Raymond and Daphne Kirkland as a taxi driver. She complained of certain conduct by Mr Kirkland, the appellant towards her, which conduct would certainly amount to sexual harassment, and commenced proceedings. The magistrate accepted her evidence and awarded her the sum of $24,200. I should say in passing that the basis of calculating the award may be suspect but that matter has not been addressed on appeal. The matter must go back for re-trial for another reason. 4 In par 35 of his reasons the magistrate said: Considering whether or not to accept the applicant's evidence I started from the base that a person was unlikely to make up and bring to prosecution allegations of this nature against a businessman of some profile in a small country town. There is nothing novel about this assumption and it is one that can be easily rebutted if the complainant is shown to have a motive for making his or her complaints. In this case the respondent has attempted to show as a motive the dismissal of the applicant. The difficulty which I have in accepting this submission is that the applicant attended upon her doctor and complained of sexual harassment before she was dismissed. Furthermore, the evidence relating to the unsatisfactory nature of the applicant's driving put forward as a reason for her dismissal was only put forward very late in the day and not contained in any of the original affidavits. 5 In some contexts this reasoning as to credibility might be acceptable save for the presumption with which it commenced. This is not an appropriate case in which to visit the question of the standard of proof in proceedings pursuant to s 46PO. It is clear, however, that a relevant tribunal cannot start with the presumption that one party is unlikely to make up and bring to prosecution the allegations in question unless they are justified. The magistrate was obliged to determine which evidence was to be accepted in the case. That obligation could not be discharged by making an assumption of that kind and placing the onus of rebutting it upon the other party. In this respect the magistrate has misunderstood his function. Comments such as those made by the magistrate have sometimes been made in the course of criminal trials where it is suggested that a complainant or a police officer has no apparent reason for making up a story. Such an observation concerns the assessment of credibility and involves no presumption one way or the other. Given the precision of the language used by the magistrate in speaking of starting from "the base that a person was unlikely to make up and bring to prosecution allegations" such as those in question, and the express reference to rebutting such a presumption, it is impossible to be satisfied that the magistrate approached this matter with an open mind. Indeed, the contrary seems clearly to be demonstrated. In those circumstances Mr Kirkland's appeal must be upheld and the decision set aside in so far as it concerns him. The matter should be remitted to the Magistrates Court for re-hearing. Clearly enough the re-hearing should be by another magistrate. The Court will order accordingly. 6 The appellant has, in my view properly, indicated that he does do not seek an order for costs. The respondent seeks a certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) in respect of her costs of attending in Sydney for the purposes of responding to the appeal. She says that she has appeared on three occasions at a cost of about $100 on each occasion. That appears to be broadly consistent with the costs incurred in connection with the hearing at first instance as disclosed in the magistrate's reasons. In those circumstances I certify pursuant to s 6(3) that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment to her in the sum of $300 representing the cost of $100 for each of three trips. 7 Pursuant to s 8(3) I also certify that in the opinion of the Court it would be appropriate for the Attorney-General to authorise payments under this Act to both the appellant and the respondent in respect of such part as the Attorney-General considers appropriate of any costs incurred by either party in relation to the new trial. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.