Kozjak v Fairfax Community Newspapers Pty Limited

Background Facts 3 The appellant, who was 21 at the time of the attack, commenced work for the respondent as a sales representative on 14 February 1994. Her job required her to sell advertising space in the respondent's newspaper to existing clients and to canvass new clients. The canvassing of new clients was known as 'cold canvassing'. 4 When she commenced work, the appellant was advised she would undergo four weeks training, which involved accompanying an experienced sales person as that person canvassed old and prospective clients in nominated sales areas. In her first 2 ½ weeks, the appellant accompanied Ms Glenys Gibbons on her rounds in the retail and commercial areas of Fairfield, Canley Vale, Cabramatta and Wetherill Park. On one occasion they visited a garden centre on the outskirts of an industrial estate. 5 After 2 ½ weeks of training, the appellant was given the job of cold canvassing an area known as the Wetherill Park Industrial Estate by the manager at the respondent's Fairfield office, Mr Gatt. 6 The Wetherill Park Industrial Estate was located away from main shopping and residential areas and comprised a mix of small and large businesses. The small businesses included industries such as smash repairers, radiator repairers and air conditioning manufacturers and were conducted out of 'module' style premises. The large businesses included multinational companies and warehousing facilities and were conducted out of large freestanding factory premises. The estate was also described in the evidence as containing numerous shopping centres and individual retailers. There was a predominantly male workforce employed in the area. 7 The circumstances whereby the appellant went to the industrial estate were in dispute between the parties. The appellant contended that Mr Gatt directed her to cold canvass the industrial estate to sell advertising for a feature on motor car racing. She said she objected as she felt too inexperienced to cold canvass on her own. 8 Mr Gatt contended that the appellant insisted on being allowed to canvass on her own so that she could earn commissions on any advertising sold. She had been denied commission on sales she had made up to that time in her training period. 9 There was also a dispute as to when the appellant first went to the industrial estate and the circumstances arising out of that. 10 The appellant said she was first directed to go to the industrial estate on 3 March 1994 and whilst there was subjected to wolf whistling and sexually suggestive comments by numerous male employees in the various businesses she visited. She said she felt "uncomfortable". She said she was approached by one group and she jumped back into the car. She described herself as being "scared" and the situation as being "scary". 11 When she returned to the respondent's premises she said Mr Gatt asked her how she had gone. She responded: "… '[O]h, okay' … then as I got closer, … I said to him, 'look, you know, I did get some advertising today but … … 'is there any chance Glenys is working with me tomorrow … because look … I went out there today … I was harassed … I was scared … I just felt threatened, I felt like someone was going to hurt me or, or try to … look, you know, I don't want to go out there by myself tomorrow … look don't sent me out there tomorrow. Can Glenys work with me tomorrow'?" 12 She said Mr Gatt told her to "just deal with it" and that Ms Gibbons was not available to help her. 13 Mr Gatt denied the appellant went to the estate on 3 March and further denied the appellant had made any complaint to him about what she had experienced. 14 The appellant said other members of staff were present when she spoke to Mr Gatt. Two of the three other female staff members were called by the respondent and denied there was any such conversation. 15 There was no dispute that the appellant went to the industrial estate on 4 March 1994. The appellant said that on the morning of 4 March she lingered around the office as she was nervous about going out to the estate alone, because of the events of the day before. Eventually, Mr Gatt noticed she was still in the office, swore at her and told her she had the choice between doing the job or having no job. She said as she was keen to have this job, and did not want to give in, she went to the industrial estate as directed. 16 There seems no doubt that the appellant was late leaving the office, although Mr Gatt denied the appellant's version as to her reasons for this. 17 The appellant canvassed one customer without incident. This was a large sporting warehouse outlet at which some females were employed. She then decided to have a drink, attend to some paper work and make some telephone calls. She drove towards the end of the industrial area and parked in a dead end section of the main road to do this. There was no through traffic in this area, although the appellant observed a red laser which was parked nearby and left without incident, and no businesses, save that the Good Year factory backed onto the road. There was no access to the factory from the street where she was parked. There was a dumping area opposite and farmland along the side of the road where she was parked. In short, the area was deserted. 18 As she was seated in her car the appellant was sexually assaulted by two men. After the assault the two men drove away in a yellow four wheel drive with green and white number plates. 19 It was not in dispute that the appellant was raped as alleged.