Magar v Khan [2025] FCA 874

1. The collateral victimisation allegation was articulated with less clarity than the harassment allegations. Much of the evidence related to victimisation also related to the claim for aggravated damages, discussed below, given it was formulated as an alternative to the victimisation claim.
2. Ms Magar claims that she was victimised by Mr Khan after she continued to pursue her complaint following the conclusion of the internal investigation by Mad Mex. While not explicitly articulated in the Complaints to Mad Mex, the references to sexual harassment and harassment on the ground of sex in the email her solicitor sent to Mr Khan and Mexicali made clear that Ms Magar was making an allegation that Mr Khan acted unlawfully by reason of s 28B read with ss 28A and 28AA. The Complaints made to Mad Mex (in particular the Second Complaint, which is described in detail First Concerns Notice) also disclose the central factual allegations that underpin the harassment allegations. As such, Ms Magar contends that she has been victimised by Mr Khan because, via his solicitor, he sent the Concerns Notices in response to her decision to complain further about his unlawful behaviour. Mr Khan denies this causal connection and offers a different rationale for sending the Concerns Notices.
3. The first question is whether the Concerns Notices, the threat of litigation associated with those notices and any hurt feelings they caused to Ms Magar would amount to detriment for the purposes of s 47A. In this respect, Ms Magar relied upon the psychiatric report by Dr Fukui, which described the impact of the Concerns Notices as follows:

Ms Jarga Magar receiving two concerns notices from Mr Khan's solicitors alleging that her complaints were inflammatory further aggravated her psychiatric symptoms. She felt dismissed when she had felt that her experiences of sexual harassment from Mr Khan were dehumanising which has taken away her sense of self.

1. The alleged aggravation of her psychiatric symptoms emerged less clearly in Ms Magar's own testimony. When asked about her response to the Concerns Notices, she said she had been confused and could not understand what she had done wrong. She says she felt that Mr Khan was being manipulative of the situation. It was only through the First Concerns Notice that she discovered that Mad Mex had provided a video recording of her conversation with Ms van Wessem and Ms Dunwoody to Mr Khan. She says she had spoken to them on the condition of anonymity, and that she felt betrayed and that the investigation had been biased against her. That feeling is the result of the actions of Mad Mex rather than of Mr Khan. Ms Magar's evidence is that by the point she had received the Concerns Notices, her mental health had already deteriorated significantly. The specific effect they had therefore appears minimal in the context of her overall condition. Mr Khan contended that to the extent that Ms Magar felt any negative feelings, they merely rose to the level of confusion, falling short of showing any real detriment.
2. Nevertheless, Ms Magar did comment on what she described as the aggressive words used in the Concerns Notices and confirmed that she knew they related to defamation proceedings after speaking with her solicitor. Her evidence was that the Concerns Notices made her worried: eg, "like maybe I did the wrong thing by going to ... Redfern Legal Centre", who are her solicitors in this proceeding. There are reasons to doubt that Ms Magar necessarily understood she was being threatened with defamation proceedings - the Concerns Notices are not abundantly clear in that regard, especially to someone in her position. In that regard, her counsel attempted to use a leading question to get Ms Magar to explicitly confirm that she knew she was being threatened with defamation proceedings. However, the question was disallowed following an objection from Mr Khan's solicitor and that specific topic was not further pursued. Despite that additional piece of evidence, on the totality of Ms Magar's evidence on this topic, I find that the Concerns Notices caused her a real level of distress which went beyond being trivial. I find that distress to be a detriment within the meaning of s 47A.
3. The second issue is whether there was a sufficient causal connection between Ms Magar's Complaints to Mad Mex and her decision to pursue her complaint further, following the conclusion of the Mad Max internal investigation, and the sending of the Concerns Notices. Ms Magar submits that the Concerns Notices were clearly sent in retaliation after Mr Khan found out that she was considering causes of actions available to her after the conclusion of the Mad Mex investigation on 5 June 2023.
4. It is convenient to briefly repeat the timeline of events that preceded the sending of the First Concerns Notice on 21 June 2023:

(a) 18 April 2023: Ms Magar made the First Complaint to Mad Mex by messaging Ms van Wessem on LinkedIn.

(b) 28 April 2023: Ms Magar made the Second Complaint to Mad Mex, now in a more detailed way in a video conference with Ms van Wessem and Ms Dunwoody.

(c) After 28 April 2023 and before 5 June 2023: Mad Mex representatives interviewed Mr Khan and made him aware of Ms Magar's complaints. At some point in the course of the investigation, Mr Khan was made aware that Ms Magar was the primary complainant. Mr Khan also told Mad Mex that complaints had been made about Ms Magar sexually harassing other employees.

(d) 31 May 2023: Ms Magar's solicitor emailed Mexicali, requesting a copy of Ms Magar's employment contract, and confirmation of her employment status. The email also stated that, in the course of her employment, Mr Khan had "subjected our client to serious, repeated and unlawful sexual harassment, harassment on the basis of sex, and discrimination on the basis of sex (Harassment)."

(e) 5 June 2023: Mad Mex, through Ms Dunwoody, sent a letter to Mr Khan saying that the investigation was concluded, and that some of Ms Magar's complaints had been made out.

(f) 6 June 2023:

(i) Mad Mex provided Ms Magar with a letter saying that some of her allegations had been substantiated and that appropriate actions would be taken;

(ii) Ms Magar's representatives spoke with a Mad Mex representative on the phone, who declined to confirm which of the allegations had been substantiated or what actions would be taken in relation to Mr Khan; and

(iii) Mad Mex sent Mr Khan a "Notice to Remedy Breach of Franchise Agreement" which identified which of Ms Magar's allegations had been substantiated by its investigation, stated that it considered Mexicali had breached some Mad Mex policies and legislation (including the SD Act) and required Mr Khan and Mexicali to take various actions to avoid termination of the franchise agreement.

(g) 8 June 2023: Ms Magar's solicitor sent an email follow up to the email described at (d) above.

1. During Mr Khan's cross examination, he accepted that once he received the letter from Mad Mex on 5 June 2023, he thought that matters related to the sexual harassment allegations had concluded, and that there was nothing further he needed to do, at least in relation to those allegations. He also accepted that his view changed on 8 June 2023, after receiving an email from Ms Magar's solicitor, which was a follow up to an earlier email in which had stated that she would be advising Ms Magar on available causes of action related to the alleged sexual harassment. From that time, Mr Khan knew that Ms Magar intended to continue her complaints of sexual harassment and instructed his lawyers to send the First Concerns Notice, which was sent on 21 June 2023. The reply from Ms Magar's solicitor on 14 July 2023 further strengthened his impression that Ms Magar would continue her complaints, and Mr Khan instructed his solicitor to send the Second Concerns Notice, which was sent on 28 July 2023.
2. Mr Khan denied that the reason for sending the Concerns Notices was to intimidate Ms Magar out of pursuing her sexual harassment complaint. In cross-examination, Mr Khan agreed that he was "instructed by [his] lawyers to go along this path" and accepted that the Concerns Notices were sent on his behalf. He denied that the Concerns Notices were to prevent Ms Magar from pursuing her complaints but stated that he was "trying to put an end to everything". I accept his evidence that by instructing his lawyers to send the Concerns Notices he was trying to put an end to everything, and find that this was unavoidably directed to stopping Ms Magar from maintaining her complaints against him of, inter alia, sexual harassment. It follows that I reject his evidence that the Concerns Notices were not sent, on his instructions, to prevent Ms Magar from pursuing those complaints.
3. During re-examination, Mr Khan advanced a different reason for sending the Concerns Notices, namely that he wanted to maximise the sale price for the Store given he was in poor financial shape. He said that he was concerned about the value of the business diminishing if Ms Magar continued to approach Mad Mex about her complaint and agreed that that was the reason for sending the Concerns Notices. This evidence was adduced through a number of leading questions by Mr Khan's solicitor.
4. I am not persuaded that this is in truth an alternative argument in the sense of being materially different. Rather, it was evidence of a further reason that he had for seeking to stop Ms Magar from pursing her complaint. It remained the case that he was seeking the withdrawal of Ms Magar's complaint as the end goal. Whether Mr Khan ultimately wanted that to end for his own reputational reasons or for financial reasons does not negate the fact that he sent the Concerns Notices in response to Ms Magar deciding to further pursue her complaint. I am therefore satisfied that Mr Khan sent the Concerns Notices, via his solicitors, on the ground that she had made allegations that Mr Khan had engaged in acts that, by reason of Pt II of the SD Act, were unlawful.
5. It follows that I find that Mr Khan, by sending each of, and both, of the Concerns Notices, committed acts of victimisation against Ms Magar and thereby contravened s 47A(1).

F. Relief for the contraventions that have been established

1. Where this Court is satisfied that contraventions have occurred, and those contraventions were subject to a complaint to the AHRC which has been terminated by the AHRC, it may make declarations of contravention and orders for compensatory damages (among other things): AHRC Act s 46PO(4)(a) and (d). I am satisfied that declarations of contravention are appropriate, but will give the parties an opportunity to confer and propose joint or competing drafts as to their terms, in accordance with these reasons.
2. The damages that may be awarded under s 46PO(4) of the AHRC Act are "damages by way of compensation for any loss or damage suffered because of the conduct of the respondent". Ms Magar seeks relief by way of damages as follows:

(a) General damages of $300,000, reflecting non-economic loss for pain and suffering, as well as loss of enjoyment and loss of the amenities of life, resulting from Mr Khan's contraventions of the SD Act (excluding the victimisation contravention).

(b) $160,000 for future economic loss and $80,000 for past economic loss arising from her inability to return to work.

(c) An additional $50,000 in general damages for the victimisation contravention, or alternatively if the victimisation contravention is not made out, $50,000 in aggravated damages collateral to the harassment.

1. That relief was sought if all of the allegations were made out. The Group Behaviour, Managers' Behaviour and Sexual Comments were not established, though the most serious of the harassment allegations were, as well as the collateral victimisation allegation.
2. Compensatory damages under s 46PO(4) may include an award of aggravated damages: Tickle v Giggle for Girls Pty Ltd (No 2) [2024] FCA 960; 333 IR 296 at [232]- [250] and the authorities there cited. However, as I have found that victimisation has been established, this aspect of Ms Magar's claim will be addressed upon that basis, as that is what she principally seeks under its own head of damages.

1. The principles pertaining to the award of damages for sexual harassment were surveyed in detail by Bromberg J in Ewin, and have not materially changed in the intervening period of almost 12 years since that decision was handed down. The principles his Honour distilled have a timeless quality to them. It is helpful and convenient to reproduce his Honour's detailed and comprehensive summary of those principles, which extend to identifying the difficulties attendant upon assessing the appropriate level of damages, especially for non-economic loss:

[602] There are a number of judgments of this court where the task of assessing damages for a contravention of the SD Act has been guided by principles utilised by the common law in the assessment of damages resulting from tortious conduct: Hall at FCR 239; ALR 522 per Lockhart J; Commonwealth v Peacock (2000) 104 FCR 464; 181 ALR 726; 63 ALD 127; [2000] FCA 1150 at [55] per Wilcox J; Richardson v Oracle Corp Australia Pty Ltd [2013] FCA 102 at [208] per Buchanan J. However, as French and Jacobson JJ (with whom Branson J generally agreed) said in Gama at [94], "Ultimately it is the words of the statute that set the criterion for any award". Having said that, their Honours recognised that the appropriate measure may be analogous to the tortious measure, the object of which is to place the injured party in the same position as if the wrong had not occurred.

[603] The interaction between a statutory source for an entitlement to damages (such as that provided for by the former s 82 of the Trade Practices Act 1974 (Cth)) and the principles of the common law were usefully summed up by Gleeson CJ in Henville v Walker (2001) 206 CLR 459; 182 ALR 37; [2001] HCA 52 at [18]:

[18] ... The task is to select a measure of damages which conforms to the remedial purpose of the statute and to the justice and equity of the case. The purpose of the statute, so far as presently relevant, is to establish a standard of behaviour in business by proscribing misleading and deceptive conduct, whether or not the misleading or deception is deliberate, and by providing a remedy in damages. The principles of common law, relevant to assessing damages in contract or tort, are not directly in point. But they may provide useful guidance, for the reason that they have had to respond to problems of the same nature as the problems which arise in the application of the Act. They are not controlling, but they represent an accumulation of valuable insight and experience which may well be useful in applying the Act.

Similar observations were made by Gaudron J at [68] as well as by McHugh J (with whom Gummow J agreed) at [95]-[96] and [135].

[604] What is abundantly clear is that care needs to be taken in applying common law principles to a statutory provision for the award of damages. Those principles should not be applied unless they are consistent with the text of the remedial provision and the objects and purpose of the statute in question.

[605] The words used in s 46PO(4)(d) allow for "damages by way of compensation for any loss or damage suffered because of the conduct of the respondent" (emphasis added). The word "because" denotes a connection between two things "by which one is the explanation of the other": John Holland Group Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2010) 198 IR 439; [2010] VSC 322 at [29] per Pagone J. The nature of the nexus required between the damage suffered and the unlawful conduct is that the conduct has brought about or caused the damage to occur: Human Rights and Equal Opportunity Commission v Mt Isa Mines Ltd [1993] FCA 535; (1993) 46 FCR 301 at 321; [1993] FCA 535; 118 ALR 80 at 98-9 per Lockhart J.

[606] The extent of the contribution made by the unlawful conduct to the injury suffered may be taken into account: Gama at [99] per French and Jacobson JJ, with whom Branson J generally agreed. A practical judgment will be required.

[607] The difficulty of assessment as well as the need to take the purpose and object of the remedial provision into account, are apparent from the following insightful observations made by Wilcox J in Hall at FCR 256; ALR 543-4:

[T]he task of determining the appropriate level of damages in a case of sex discrimination or sexual harassment is not an easy one. Where it appears that a claimant has incurred particular expenditure or lost particular income as a result of the relevant conduct, that economic loss may readily be calculated. But damages for such matters as injury to feelings, distress, humiliation and the effect on the claimant's relationships with other people are not susceptible of mathematical calculation. The assessor of damages must make a judgment as to an appropriate figure to be allowed in respect of these figures. But to say this is not to denigrate the importance of such non-economic factors in the assessment of damages. It may be unfortunate that the law knows no other way of recognising, and compensating for, such damage; but this is the fact. To ignore such items of damage simply because of the impossibility of demonstrating the correctness of any particular figure would be to visit an injustice upon a complainant by failing to grant relief in respect of a proved item of damage. I respectfully adopt, as a statement of principle useful in this area of the law, what was said by May LJ, of the English Court of Appeal in a racial discrimination case, Alexander v Home Offıce [1988] 1 WLR 968 at 975; [1988] 2 All ER 118 at 122:

"As with any other awards of damages, the objective of an award for unlawful racial discrimination is restitution. Where the discrimination has caused actual pecuniary loss, such as the refusal of a job, then the damages referable to this can be readily calculated. For the injury to feelings however, for the humiliation, for the insult, it is impossible to say what is restitution and the answer must depend on the experience and good sense of the judge and his assessors. Awards should not be minimal, because this would tend to trivialise or diminish respect for the public policy to which the Act gives effect. On the other hand, just because it is impossible to assess the monetary value of injured feelings, awards should be restrained. To award sums which are generally felt to be excessive does almost as much harm to the policy and the results which it seeks to achieve as do nominal awards. Further, injury to feelings, which is likely to be of a relatively short duration, is less serious than physical injury to the body or the mind which may persist for months, in many cases for life."

1. On the topic of past and future economic loss, dealt with at [618]-[651], Bromberg J surveyed the detailed evidence before him, both from Ms Ewin herself, and from a psychologist and a psychiatrist. However, his Honour was critical of the sparsity of evidence as to when Ms Ewin could make a graduated return to work. His Honour made the following observation, which has application to this case (at [630]):

Ms Ewin bears the onus of proof in establishing her loss and damage. She also has a duty to mitigate her loss and damage. I am not satisfied, on the evidence before me, that Ms Ewin was not capable of returning to work in a part-time capacity from 1 July 2010. Ms Ewin's duty to mitigate her loss included a duty to take reasonable steps to graduate back into full-time employment. The appropriate steps which ought to have been taken, according to the medical evidence called for Ms Ewin, were not taken. In my view they should have been and could have been taken from at least 1 July 2010.

1. It is fair to say that the evidence of damages before Bromberg J was considerably more detailed than this case, including detailed evidence about Ms Ewin's capacity to return to work, for which there was limited evidence in this case, and most of it obtained in the course of a single interview with Dr Fukui.
2. Bromberg J summarised the situation of Ms Ewin in relation to pain, suffering and loss of amenities in that case in terms that bear a reasonable degree of resemblance to this case: see [652]-[657]. I have found his Honour's principled approach helpful in this case.

1. Ms Magar gave evidence that Mr Khan's conduct giving rise to the contraventions has profoundly affected all aspects of her life, including her ability to work, socialise and look after herself. In particular, she gave compelling evidence about the impact of Mr Khan's conduct on her mood and mental health.
2. Ms Magar testified that, after the last Car Incident, she felt humiliated, powerless and helpless "like I wasn't human enough ... Like I didn't know whom to talk to or what to talk about." Discussing her experience on 17 February 2023, the day on which she decided to not return to work, she describes the feeling of disassociating from her body and feeling unable to control her bodily movements.
3. In the months following 17 February 2023, Ms Magar describes being bedridden most days, being unable to prepare food to eat, get water to drink or get out of bed to use the bathroom without difficulty. She describes being at the "mercy" of her friends, who would have to bring her food and water in bed. She said she felt that she would have killed herself, but did not have the energy even to plan her suicide. A few weeks after 17 February 2023, with her savings running out, she moved in with her partner. She remains heavily reliant on him day-to-day and is financially dependent upon him. Prior to this, Ms Magar had been living alone in sublet premises.
4. Ms Magar's evidence is that, even now, she is affected by thoughts that others judge her or view her in a sexual way, which has made her afraid of going outside. She describes being afraid to leave the house by herself, and that she needs someone to accompany her to assure her that people are not viewing her sexually or judging her. She says she feels dirty, and feels like she deserves to feel that way. She says that to leave the house she needs to plan far in advance so that she is ready to be presentable. Friends can visit her at home, but only for limited periods, which has made it exceedingly difficult to sustain friendships.
5. Ms Magar describes being afraid of working again: "even when I go through drive-through of McDonald's or, like, some fast food chain, I just can't imagin[e] me being in the other side." She has been able to continue studying, though says she must plan carefully to prepare herself to attend classes where she has to do so, because of the difficulties she faces when leaving home.
6. All of the above evidence falls to be considered in the context of her complex history of mental health issues, that bear not just on the assessment of damages, but also antecedent to that, in the assessment of the credibility and reliability of her evidence as summarised above.
7. When Ms Magar was 15 years old and living in Nepal, she was diagnosed by a psychiatrist with depression and anxiety. As a teenager she experienced physical and sexual abuse. Her depression and anxiety persisted since arriving in Australia at 18 years of age, including during a period where she experienced abuse by a former boyfriend. She has been prescribed with an anti-depressant, venlafaxine, since she arrived in Australia. In 2021, she started seeing HeadSpace, Australia's national youth mental health foundation, which provides early intervention mental health services to 12-25 year olds.
8. In January 2022, Ms Magar experienced an episode of psychosis, which included experiencing auditory hallucinations. She was hospitalised for a period, and on discharge was referred to HeadSpace's program for early psychosis, which involved psychological and psychiatric treatment. She was also prescribed with anti-psychotic medication. After returning to Nepal to visit family, she returned to work at the Store.
9. Ms Magar gave evidence that between the January 2022 episode and 17 February 2023, she did not experience an episode of psychosis again. In consultation with her HeadSpace psychologist, she halted anti-psychotic medication in January 2023. Ms Magar says she felt "reborn", and found it exciting to meet new people, attend HillSong events near the Store with friends, go on hikes and attend Nepalese concerts. She describes being able and unafraid to go outside alone at that time, which was around the time that the harassment behaviour by Mr Khan commenced.

1. Dr Fukui's report largely recites aspects of Ms Magar's account of the impacts of Mr Khan's conduct as the factual substratum for the opinions she gives. There are no material inconsistencies between that and the evidence that Ms Magar gave before me, although it is apparent that the latter was less detailed in certain respects. Dr Fukui's report does not contain much about the actual incidents themselves - there is only one short paragraph about it and it refers to the details in the amended statement of claim. However, in terms of the impact of the events upon Ms Magar, the report is more detailed. Given the report was made for the purposes of determining the effect of Mr Khan's conduct on her, I interpret phrases such as "the experience in her workplace" and "her exposure to sexual harassment" as referring to the conduct towards her by Mr Khan. Notably, Ms Magar described to Dr Fukui her dread about work ("a sense of dread as if she is going to die") in very similar terms as in her testimony. Dr Fukui echoes the impact that Mr Khan's actions have had on Ms Magar's personal and social life, including a loss of trust in others, especially men, which has contributed to her self-isolation.
2. Dr Fukui's opinion is that Mr Khan's conduct caused Ms Magar to sustain psychiatric conditions which resulted in her loss of independence. The report states that the sexual harassment incidents "have exacerbated her longstanding anxiety and depression" and resulted in her "currently suffering from Major Depressive Disorder with Anxious Distress and Posttraumatic Stress Disorder."
3. A recurring theme in Dr Fukui's report was Ms Magar's deep sense of uncertainty about the future, given she is still experiencing acute symptoms from her psychiatric conditions. The report concludes that, while it is difficult to assess Ms Magar's prognosis for recovery at this stage, with her complex psychiatric history it is likely she will need long-term psychiatric and psychological treatment to return to her previous level of functioning. This includes a minimum of two years of intensive psychological therapy, as well as psychiatric monitoring over her mental state and pharmacotherapy.

1. Ms Magar testified that, on 17 February 2023, shortly after the last Car Incident, she had taken the bus from her home to the Store, but found herself physically unable to get off the bus:

I was on my usual seat on the bus because, like, I had to take it every day - almost every day. So, like, I could see this station, and, like, in my brain, like, a lot of thoughts were racing, and, like, I was saying to myself, "Okay. You need to get off. Like, it's your time to start. Come on. Get off. Get off." But, like, I physically couldn't move any part of my body.

1. She has not returned to work since.
2. Ms Magar's contention is that Mr Khan's actions have prevented her from engaging in paid work. That turns on the findings about the psychological impacts of Mr Khan's actions on Ms Magar. For the reasons discussed below, I accept the substance of that evidence, as far as it goes, which is limited on the topic of future economic loss for the reasons I give below.
3. In cross-examination, Mr Khan's solicitor suggested to Ms Magar that the visa she had held from April 2023, a bridging visa class C, did not entitle her to work anyway. Ms Magar's evidence is that she could have transferred to a bridging visa class A at any point in that period, the inference being that she would have had she been able to work. I did not consider this challenge to go towards the substance of her evidence. It is not necessary to determine whether Ms Magar would be able to obtain a different class of bridging visa or to obtain work rights on her existing bridging visa given the lack of evidence on this issue. In any event, it is obvious that there would be little point for Ms Magar to pursue a change in visa status to permit paid work to be performed at a time when she is unable to perform it.
4. Ms Magar's employment contract with Mexicali shows that her base rate of pay was $28.75 from 11 October 2022 (the contract appears to have been amended after its execution in March 2022, with a new base rate inserted, which was signed and dated) Under that employment contract, she agreed to work an agreed schedule of 30 hours per week, set out in an annexure, "plus reasonable additional hours." Ms Magar's evidence was that, in the period prior to the contraventions, she had worked roughly 30 hours a week. She also gave evidence that sometimes she was late for her shifts because of panic attacks, though it is unclear whether her evidence of working on average 30 hours a week factored that in. She also gave evidence that occasionally she would work a longer shift or would be asked to work additional shifts. Text messages with Ms Magar, tendered by Mr Khan, support both propositions.
5. At her base rate from October 2022, 30 hours' work equates to $44,850 per annum gross. It was ultimately advanced that a ballpark figure of $40,000 per annum would be suitable after accounting for income tax, amounting to $80,000 for lost income in the calendar years 2023 and 2024.
6. There was no dispute that this figure should be awarded if liability is established, given her hourly rate and regular work hours were clearly documented by the evidence. Based on Ms Magar's evidence and Dr Fukui's psychiatric evidence, I am satisfied that Ms Magar was incapacitated for work during the relevant period as a result of her psychiatric condition brought about by Mr Khan's sexual harassment conduct. Accordingly, she should receive $90,000 for past lost income for the period from 17 February 2023 to the date the hearing concluded on 5 June 2025, being just under 28 months.
7. In relation to future economic loss, Ms Magar contended that this Court should project forward for a period of five years, less 20% for vicissitudes. This equates to $160,000 for a $40,000 per annum salary, on the assumption that she would have continued earning the same salary as she did when she worked at the Store. When pressed about how the five-year timeframe was arrived at, Ms Magar's counsel said there was no particular science behind the figure, but that it was partly guided by the award in Taylor v August, where the projection was that the complainant would be unable to work for three years (at [554]), and Dr Fukui's evidence on Ms Magar's prognosis. However, in Taylor v August, agreement had been reached about future economic loss, including the duration involved, apparently due to there having been a workers compensation assessment and payment, for which the claim was supplementary.
8. It is also noteworthy that while Dr Fukui records Ms Magar's concerns about returning to work, and her need for ongoing treatment, she expresses no view about when Ms Magar is likely to be able to return to work, nor anything about a graduated return to work. There was no evidence about timing for a return to work, either on a graduated basis, or full time. Nor were any submissions directed to that topic.
9. The evidentiary basis of the $160,000 claim for future economic loss is tenuous. Ms Magar expressed a level of hopefulness in completing her studies, supported by the fact that she has been able to manage her courseload with careful planning, but this sentiment did not seem to fully extend to her future work prospects, as her experiences with work triggered higher levels of distress (i.e., she likened "the thought of going to work as having to go and die").
10. Dr Fukui was similarly cautious in her optimism, noting that Ms Magar would require "long-term" psychological therapy with a "minimum of two years of intensive psychological therapy" to regain her previous level of functioning. However, this was evidence about treatment, not returning to work. It was also acknowledged during closing submissions that there is no real guidance beyond this two-year period, and the five-year timeframe was arrived at by using Taylor as a "yardstick".
11. I accept that there's an instinctive component to assessing the figure for future economic loss, in circumstances where the evidence suggests that it is difficult to assess Ms Magar's prognosis for recovery beyond needing intensive treatment for two years. I am satisfied that Ms Magar's condition is likely to improve with psychological and psychiatric support, especially given that she has responded well to treatment in the past. In particular, she was back at work and happy after an episode of psychosis serious enough to warrant hospitalisation. Despite the seriousness of her prior condition and the seriousness of her condition brought about by the conduct of Mr Khan, Ms Magar has shown herself to be resilient, which is to her enduring credit.
12. There was no evidence that Ms Magar would not be able to work at all during the remainder of the two-year period of treatment that is already underway, or even that she could not resume fulltime work within that period. I am willing to infer that she would be unlikely to resume work before the end of the third anniversary of ceasing to work at the Store, being mid-February 2026, but even that degree of pessimism is uncertain. In the absence of any evidence to rebut it, I consider it likely that Ms Magar will be able to progressively return to work after that, ultimately returning to work at the level she was at previously, being 30 hours per week. Doing the best that I can, I consider that this will average out to an aggregate of a further year's employment from now, being $40,000.
13. The total award of damages for economic loss will therefore be $130,000.

Assessment of general damages - pain and suffering and loss of amenities

1. The evidence of Ms Magar's condition and prognosis referred to above as to economic loss applies also to general damages. The evidence of Ms Magar and Dr Fukui establishes to my satisfaction that Ms Magar was a psychologically fragile and vulnerable young woman at the time that the sexual harassment took place. Nonetheless, immediately prior to the sexual harassment, and even after a serious mental health episode, she was functioning and happy at times, though experiencing persistent depression and anxiety. She was able to work and enjoyed a healthy social life. She was able to live independently and leave the house alone.
2. That is to be contrasted with her condition since the events in question. Although Ms Magar is able to continue her studies in a constrained way with some difficulty, the events in question have had a profound effect on her ability to function normally and her happiness in general. On the evidence furnished, in the lead up to the June 2025 hearing she was unable to work, leave the house alone, or undertake normal self-care. Her sleep and eating habits are disturbed. She feels ashamed and somehow responsible for what occurred, saying she feels dirty and like she deserves to feel that way. She is dependent on her partner for support, both financially and for day-to-day tasks.
3. Ms Magar's psychiatric history made the impact of Mr Khan's sexual harassment greater than it might otherwise have been. In tort, wrongdoers must take their victims as they find them. The same must be the case in discrimination cases, especially given that Mr Khan had knowledge of at least aspects of Ms Magar's psychiatric history, and in particular that she experienced a psychotic episode almost a year before the contravening conduct. There was minimal evidence separately addressing the effect of the victimisation, the burden of which was summarised in the section above addressing detriment for the purpose of establishing the victimisation claim. By contrast, the evidence is that the sexual harassment, particularly the Car Incidents, have had a profound impact on her life.
4. None of the impacts on Ms Magar's life deposed to by her, or in the evidence of Dr Fukui are disputed by Mr Khan. His unlawful actions in sexually harassing her have drastically decreased her quality of life, at least for the time being. Despite this, she is clearly a resilient young woman and, in line with Dr Fukui's evidence, I am satisfied that her condition is likely to improve if she receives the psychological and psychiatric care that she requires. Indeed, it may be possible that she will recover more quickly than has been predicted thus far, and perhaps in ways that have not been able to be predicted and addressed. I consider it likely that the vindication she will receive from the decision I have made, including the findings I have made about her, will go some way to restoring her sense of personal worth.
5. Ms Magar contends that since Richardson v Oracle Corporation Australia Pty Limited [2014] FCAFC 82; 223 FCR 334 and Taylor v August, there has been a shift in community standards reflecting the deep hurt and humiliation experienced by victims of sexual harassment. In particular, she drew attention to the fact that Ms Taylor was awarded $140,000 in general damages, in circumstances where she had improved and could manage part-time work by the time of the trial, notwithstanding the chronic psychiatric disorder that she developed as a result of the respondent's conduct, characterised by anxiety, depression and loss of function. In these circumstances, Ms Magar argues that Mr Khan's actions had a greater impact on her functioning, in that she developed post-traumatic stress disorder and major depressive disorder, the effects of which have rendered her bedridden for months and unable to complete basic self-care activities, with little improvement so far.
6. I accept that Ms Magar experienced a more drastic decrease in functioning than that which was apparently described in Taylor v August. However, comparisons between sexual harassment cases are not straightforward and the Court does not assess damages by performing arithmetic adjustments to prior determinations: Oracle at [82] (Kenny J); Hughes at [48] (Perram J, Colliers and Reeves JJ agreeing). Prior awards of damages are therefore not precedents, but can act as yardsticks to assist in arriving at an appropriate measure of damages. As explained by Bromberg J in Ewin (at [658]):

The assessment of general damages in compensation for pain and suffering, for loss of amenity or enjoyment of life and for other intangibles, is not a science and by its nature is not readily capable of arithmetic calculation. ... The award of compensation should be neither restrained nor excessive. Each case will be determined by its own particular facts. With great caution, regard may be had to similar cases in order to determine an appropriate range within which the damages awarded should fall.

(Emphasis added.)

1. Having regard to the matters above, including the impact of Mr Khan's actions on Ms Magar and the positive and hopeful prognosis offered by Dr Fukui, I consider that an award of $300,000 in general damages for sexual harassment and an additional $50,000 for victimisation would be excessive in these circumstances in that it would exceed the level of damage that has been proven. In saying this, I echo what Bromberg J said about general damages.
2. In addition to Ewin, and the cases that Bromberg J refers to, I have examined a number of subsequent cases dealing with the assessment of damages in this area, including in particular Taylor v August, Mathews v Winslow Constructors (Vic) Pty Ltd [2015] VSC 728 and Hill v Hughes [2019] FCCA 1267 (affirmed on appeal in Hughes, considered above). That examination has included a cautious consideration of the awards of damages in those cases, as a kind of yardstick for this case.
3. I accept that Ms Magar has suffered a substantial loss of enjoyment of life and indeed her life for more than two and a half years since the sexual harassment commenced in early 2023 could be properly described as having been miserable. I consider that this is likely to abate over the next two years, by which time I consider she should be well on the way to recovery, if not complete recovery. She has been resilient in the past, and from observing her and considering her evidence and the evidence about her, I consider it likely that this will return as she recovers with the benefit of treatment. Unlike Ms Ewin, she has suffered from illness as a direct result of Mr Khan's behaviour towards her, but the impacts on Ms Ewin were nonetheless substantial and long-lasting.
4. Again, doing the best that I can, I have decided that the appropriate award of damages in favour of Ms Magar is $160,000 in general damages for the sexual harassment perpetrated by Mr Khan, compensating her for the past and the future.
5. As to the victimisation, while I am satisfied it is real, the evidence as to its effect on Ms Magar is somewhat sparse. That said, it cannot be said to be trivial, and it is conduct which must be condemned. A person in Mr Khan's position, and any lawyer advising such a person, should recognise that resort to threats of defamation action for complaining about sexual harassment is a dangerous course unless comfortably satisfied that the allegations are baseless. In a case in which real and substantial damage is proven from such conduct, the award of damages could well be very substantial. However, that is not this case. I consider that an appropriate award of damages for the proven victimisation is, in all the circumstances, $10,000.

1. As an alternative to the victimisation claim, Ms Magar sought $50,000 in aggravated damages. Given the victimisation claim has been made out, no aggravated damages should be awarded in respect of any conduct that cuts across the victimisation claim. To do so would be to award damages twice for the same loss.
2. However, in closing submissions, Ms Magar advanced additional bases justifying an award of aggravated damages, namely, aspects of how Mr Khan conducted his case during the hearing. Her first concern is with a suggestion by Mr Khan's solicitor that the contravening conduct could not have occurred because Ms Magar was able to continue working at the Store and had sent a text message to Mr Khan on 16 January 2023 asking how his operation went. Second, she takes issue with Mr Khan's submission which claimed that since Ms Magar had once mentioned to Mr Mehta that she liked chaos in her life and had been shown pornography before, that made her less likely to be offended by the alleged contravening conduct. Indeed, that second argument went further, contending that Ms Magar had been addicted to pornography.
3. Neither argument was put to Ms Magar during cross-examination. The submission on pornography was scandalous, and entirely unsupported by Mr Mehta's notes. More importantly, there was no basis for an argument that because a person had been exposed to pornography, or liked chaos, that they would not be hurt or offended by a person in a position of power over them showing them pornography. It was a highly offensive argument to put. Nor was there any basis for the argument that, because she had previously had friendly interactions with Mr Khan, any of his subsequent conduct was less plausible. As Ms Magar submitted, that rested on antiquated notions of how people respond to sexual harassment in the workplace (further discussed above at [141] above).
4. The way in which a respondent conducts themselves during and in the lead up to a proceeding can give rise to an award of aggravated damages under s 46PO(4), where that conduct makes an applicant's distress worse after the wrongful act or acts are committed, and where that conduct was improper, unjustifiable or lacking in bona fides: Taylor v Pemberton at [524]-[525]; Elliott v Nanda [2001] FCA 418; 111 FCR 240 at [180], [182]; Hughes at [61]-[64]. I am satisfied that both grounds are met here. Though Ms Magar did not give evidence as to the hurt it caused her after these arguments were said, that hurt could be obviously inferred. These arguments, and especially the second, were not bona fide parts of Mr Khan's defence.
5. No particular amount was suggested for aggravated damages arising from the way in the which the proceeding was defended. In the circumstances, including the relatively fleeting nature of the conduct complained of, I consider an award of aggravated damages of $5,000 is appropriate.

1. Ms Magar has substantially succeeded in her claims. I find that she was sexually harassed by Mr Khan and victimised for complaining about his unlawful conduct. I am also satisfied that his conduct caused her to suffer loss and damage.
2. The parties will be directed to confer and within 14 days or such other time as may be allowed, provide agreed or competing orders to give effect to these reasons as to declarations of contravention. Once that has been furnished, I will additionally make orders to the following effect, ordering Mr Khan to pay Ms Magar a total of $305,000. This is made up of:

(a) Damages in the sum of $175,000, comprising:

(i) general damages for sexual harassment in the sum of $160,000;

(ii) general damages for victimisation in the sum of $10,000;

(iii) aggravated damages arising out of an aspect of the way in which Mr Khan's case was run at trial in the sum of $5,000;

(b) compensation in the sum of $130,000, comprising:

(i) $90,000 for past economic loss up the date of the conclusion of the hearing on 5 June 2025;

(ii) $40,000 for future economic loss from the conclusion of the hearing.

1. No reason has been advanced for costs not to follow the event and therefore for Mr Khan not to be ordered to pay Ms Magar's costs. If that is not disputed, the draft orders should reflect that. However, in case there is some reason for a different costs order to be made, short written submissions and any evidence can be filed according to a timetable agreed between the parties, or by a timetable ordered by made in chambers, considering the parties' competing timetables. Any such agreed or competing timetables should be furnished to my chambers by email within 7 days.

I certify that the preceding two hundred and twelve (212) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromwich.