Phillis v Mandic [2005] FMCA 330

The applicant is a young woman of almost 27 years of age. She left her selective high school in year 12 to take up a position in the Royal Australian Navy. She had been adopted at or around the time of her birth. In 1999 she married a fellow rating, resigned from the navy and moved with him to Perth. In June 2001 she separated from her husband and returned to NSW. She was divorced in or around July 2002. After a series of jobs of an administrative nature she joined a company known as Redgum Engineering ("Redgum") on 7 July 2003. She had been introduced to this company through her uncle who knew the proprietor Mr Evan Sinclair. The business appears to have been a small engineering operation specialising in repairing and making parts for water cooling machines. Ms Phillis was employed to cope with the considerable backlog of paperwork, particularly Mr Sinclair's problems with not having filed any BAS statements for two years. She was also the Occupational Health & Safety officer and the wages clerk. The business operated out of a small factory that seems to have consisted of two main rooms; the office and the workshop. Ms Phillis worked in the office. Ms Phillis told the court that she came to work wearing jeans with a shirt and often a jumper or a jacket. She stated that it was winter time and it was cold and there was no heater in the office. Some of her shirts did not tuck into her jeans and she agreed that it was possible when she was stretching, or presumably when her clothes rode up, for someone to see that she had a navel piercing. The respondent appears to have been the only regular employee of the company although there was at the hearing some discussion of an apprentice. Certainly the actions which gave rise to this complaint all took place in the absence of Mr Sinclair or of any other employees.

About ten days after Ms Phillis commenced work Mr Sinclair went away to Queensland on company business. She said that up to that time she had not spoken much to the respondent who had been introduced to her as Jimmy. She knew that he started work at 6am and worked to 2.30pm. She started work at around 9am and was paid on an hourly basis. In her affidavit of 18 June 2004 Ms Phillis deposed to the following incident taking place on 17 July 2003.

"The respondent said to me words to the effect "can you hook me up with your girlfriends? My wife is trying to poison me. She only married me so that she could get a visa to come into Australia." He asked to see my "padlock" which was the name that he gave my belly-button ring and I told him no. He changed the radio to a foreign station and asked me to dance with him and once again I told him "No". On that particular day the respondent and I were alone together from 9.00am until 2.30pm when he left to go home. When Jimmy asked me to dance with him he grabbed my right upper arm and pulled me towards him. When I said stop it he laughed and let go."

The next day the applicant claims in her affidavit that there was another incident which she describes in the following terms:

"18th of July 2004. Evan called me into the workshop at about 10 am and requested that I do a muster of all the tools in the workshop. I asked Jimmy to help me, as there were a lot of tools that I was unsure of their names. When we were about half way through the muster we started writing down the tools that were on or under the workbench closest to the office. I was standing at the right end of the workbench while Jimmy was standing at the left hand side. Jimmy pulled out a toolbox from his side of the bench and opened it up. I recorded the contents. Once that was done Jimmy walked over to me and placed the toolbox behind my legs. He put one arm between my legs and the other on the outside of my left leg and proceeded to push the toolbox through my legs and back under the bench (the opposite side to which it came from). I didn't say a word to him I just froze and didn't know how to respond at all. After Jimmy got up off the floor I returned to the office and shut the door. That afternoon I was eating a banana and Jimmy kept asking me for a bite of it. I kept saying no and he kept insisting on me giving him a bite. I told him to get away from me, not to touch me and to keep out of my personal space. Before leaving he asked to see my "padlock" I said no and he laughed and left the office. At about 14.25 Jimmy came back into the office and told me that I was a beautiful girl and then he started talking in a different language and I couldn't understand what he was saying. He grabbed my arm and tried to pull me towards him. I told him to let go of and stay away from me. He smiled then laughed at me and walked away. About 10 minutes later I saw him standing outside the office window looking at me."

Nothing further occurred until 23 July 2003 when the applicant stated:

"Jimmy came into the office that morning and asked me if he could get his super paid into C+BUS monthly and I told him to bring in his membership number so I could organise it. Before he left the office he asked me again to see my padlock. I said no so he started to lift up my shirt. I grabbed his hand to stop him and he started laughing. He left the office and went back around to the office window where he stood for about 20 minutes looking in at me. I gave him a filthy look and he left and went back to his work bench at the back of the workshop. I approached him just before I left to go to the dentist to let him know where I was going and I found him grinding without using safety glasses. I told him that because of OH & S he was required to wear them and he laughed at me saying that he doesn't need to. He then approached me and tried to lift up my shirt and he said "I want to see your padlock. You have beautiful stomach I want to see it". I grabbed his right hand which was holding up my shirt and I picked up a hammer and said "I will break your arm if you do not let go". He let go and started laughing and walked back over to the other side of the bench where he was working. I just wanted to get away from him and I left straight away."

The applicant deposed that on 28 July 2003 she went with Mr Sinclair to Sydney and whilst on the journey she told him about the incidents with the respondent. Mr Sinclair promised to dismiss the respondent and on 30 July 2003 he rang the applicant and told her not to come into the office because he was going to dismiss the respondent that day and that the applicant was still there. Ms Phillis also complained that after these incidents she received a number of threatening telephone calls on her mobile phone which she believed came from the respondent. The applicant believed that as a result of the respondent being dismissed from his employment because of her complaints that she might be assaulted by the respondent and on 15 August 2003 sought an AVO against him. The application was resisted by the respondent and was heard by a local court Magistrate who granted the applicant an apprehended violence order on 29 October 2003. The applicant had also lodged a complaint with HREOC against the respondent on 4 August 2003. This complaint was terminated by the commission on 18 March 2004.

At the same time that these matters were going on, including the alleged sexual harassment, the respondent was in dispute with Redgum over entitlements. He claimed that these had not been paid and he called the union in to assist him in recovering the underpayments. It was the respondent's personal belief that the applicant had made the allegations of sexual harassment against him as part of her employer's response to his legitimate claims to be properly remunerated. The evidence reveals that his claims against Redgum were perfectly justified and that an award from the Industrial Commission NSW had to be made in his favour. The respondent claims that the applicant has persecuted him on behalf of her former employer by bringing the AVO proceedings, the HREOC proceedings and the application to this court. These claims were not made by the respondent's counsel who indicated that he was not in a position to establish them through evidence.

The applicant claims that she became depressed after the incidents and at first bottled up her emotions. Eventually, after breaking down in front of her father, she agreed to see her local medical practitioner as she found that she had become very withdrawn and was not keeping in contact with any of her friends. She was prescribed anti-depressant medication which she took for some time but still was very withdrawn. After the AVO was granted she appears to have obtained assistance from a counsellor connected with the Criminal Injuries Compensation Board named Tony Swinton. A report was provided by him dated

29 June 2004 and another report was obtained from Mr Gerry Wenzel a consulting psychologist who saw the applicant for medico-legal purposes and whose report was dated 16 July 2004.

In her evidence the applicant indicated that her psychological problems were improving and were not as severe as she claimed they had been when she saw the psychologist.

The applicant gave her evidence in a clear and unemotional manner. The respondent's counsel attempted to point out the small inconsistencies in her evidence, but to my mind these tended to give her statements veracity. She told the Court that she had not read her affidavit since last June. She said that she had come to the court "to tell the truth". I accept this statement as her intention. I see nothing sinister in her not having read her affidavit. The applicant appeared confident in her recollection. The integers of her complaint did not really change. There was the grabbing of her arms or arms, the accusation that Mr Mandic twice tried to dance with her; his request to look at her "padlock" (her body piercing) and the incident with the tool box. There may have been more than one version of these incidents but the variations were in detail and not in substance. The questions put to the applicant to establish that the incident with the tool box was innocent and that she could have just walked away did not convince me. I was satisfied from the responses that what occurred had more than an innocent explanation. The applicant said that she would "probably have sworn at Mr Mandic". I am not sure that that is entirely consistent with her assertion in affidavit that she did not know how to respond and that she had frozen. I think this is the more probable reaction. The cross-examination revealed that the applicant was not sure whether the box was in front or behind her but what is important is that there was an incident in which Mr Mandic pushed the box between her legs. I am satisfied that that occurred.

I also accept the applicant's evidence that she did not show the respondent her navel. She surmised that he had seen her piercing when she had stretched up to reach things. Her shirt was out of her jeans. This seems to be a reasonable explanation and it was to a great extent confirmed by Mr Mandic when he gave his own evidence. He admitted that he had seen her body piercing but denied that he had ever asked to "look at her padlock".

The applicant explained her failure to include a reference to the respondent grabbing her arm on 18 July in her complaint to HREOC as not understanding exactly what was required by them at that time. She thought that she could give more details later. The complaint is less detailed than subsequent statements but I will not go so far as to accept that her later recollections were deliberate exaggerations.

The respondent denied absolutely the complaints that he grabbed the applicant's arm, that he asked to "look at her padlock", that he asked her to dance with him, that he asked her whether he could eat her banana and pushing the tool box between her legs. He offered no innocent explanation for any of these matters except the tool box incident. So far as he was concerned they just did not occur. In regard to the tool box incident he did not believe that that occurred but said that if it had it was purely innocent and that he had merely pushed the tool box towards her out of frustration at her questions about the tools. I prefer the applicant's evidence. In considering the respondent's evidence and the manner in which he answered questions one must be culturally sensitive. Defending a claim of this nature is not easy. It is particularly hard if you do not speak English as your native language, responses may tend to sound aggressive. These things must be taken into account in weighing up testimony where, as here, it is diametrically opposed and there is no corroborating evidence. Having regarded the parties in the witness box and listening carefully to the evidence of the applicant I am of the view that her complaints repeated before the local court Magistrate and HREOC were established on the balance of probabilities bearing in mind the requirement to be comfortably satisfied of those matters in accordance with the dicta in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. Even though I accept that Mr Mandic had a genuine claim against Redgum, and that in all probability Mr Sinclair was not pleased that he was making it, I cannot accept that the existence of these claims had any bearing on the conduct of the applicant.

I am also satisfied that the actions of the respondent in asking to look at the applicant's "padlock", in seeking to dance with her, in seeking to eat her banana, lifting up her shirt, in grabbing at her arm and pushing the toolbox between her legs constituted unwelcome conduct of a sexual nature which a reasonable person having regard to all the circumstances would have anticipated would offend and possible intimidate the applicant. The applicant was cross examined as to whether or not the incidents which she described were a dream or that if they happened at all they did not amount to much. The response was that she believed that the incidents were a huge invasion of her personal space and I accept this.

I am not satisfied that the incident on 24 July relating to a telephone call that the respondent made to the applicant about payment of his C+BUS contributions constituted unwelcome conduct of a sexual nature.

The applicant seeks an apology and damages from the respondent.

I have made it clear in previous decisions that I do not believe that there is any utility in forcing someone to apologise. An apology should come from the heart and not be required of someone by an order of the court. I would hope that Mr Mandic, after reading these reasons, will apologise to the applicant but I will not make him do so.

The question of damages requires an assessment of the medical evidence that has been produced. This consists of the two reports that I have previously mentioned. I have not received a report from the applicant's treating doctor nor from a consulting psychiatrist. Mr Swinton's report is described as a two hour report and has the following notation:

"PLEASE NOTE: This is a brief report written for Victim's Services and is not intended to be used for the purposes of seeking compensation."

The relevant part of Mr Swinton's report is in the following terms: (exhibit 3)

"Presenting Problems (including pre trauma functioning, trauma history and trauma symptoms): Joanne appears to have lost confidence, no longer able to work full-time and recently resigned from her job. She has been medicated for her mood and to assist her sleeping. Her sleep is poor and her appetite has diminished. Joanne finds it difficult to cope with what happened, and blames herself for not forcing him to stop. She is withdrawing socially and not exercising. Joanne is concerned about upcoming court cases to do with the matter. Joanne may have developed some obsessional traits around cleanliness. It is possible that Joanne may suffer from Aspergers Syndrome.

Intervention Plan: It was suggested to Joanne she begin to do some exercise, and try to engage in some social activities. Sleep hygiene and health eating where discussed. Joanne had begun some of these strategies by our second meeting."

The report from Mr Wenzel is detailed. It sets out the history given to the psychologist by the applicant including her abandonment of medication and notes the emotional difficulties about which she complains. In addition to undertaking a detailed structured clinical assessment Ms Phillis also completed psychometric testing in order that the psychologist could obtain a more detailed clinical picture of her current persistent difficulties. He assessed her level of mood disturbance in the past two week period leading up to and including the day of assessment as being in the minimal range of depression and that her response to the Beck Anxiety Inventory as reflecting a mild to moderate level of anxiety. Overall using the DSM IV criteria Mr Wenzel diagnosed the applicant as having a chronic adjustment disorder with mixed anxiety and depressed mood. He recommended further consultations and stated:

"If Ms Phillis is not to endure any further undue difficulties as a result of the current action it appears that her long term prognosis is a favourable one in view of the progress that she has achieved in the last twelve months.

On the basis of her current presentation her long term prognosis appears to be a favourable one with my opinion being based on the fact that she had no pre-morbid difficulties prior to the onset of her problems last year."

In fact the evidence seems to me to reveal that the applicant did have pre-morbid difficulties prior to the incident. She accepted that she had a personality crisis arising out of her adoption in her teen years and as I understood her parents' evidence her withdrawal from social life occurred before the incidents in question. But I have no evidence of a medical nature from the respondent and it would not be appropriate for me to interpose my own diagnosis of her condition or its causes upon the evidence produced by her. The respondent's counsel cross-examined the applicant and her witnesses to establish other reasons for her mental condition. He suggested her divorce, her relationship with her parents, her other relationships. Problems in these areas may have had some effect on her condition but the trigger seems to me to have been the events at Redgum which are the subject matter of the complaint.

The proper method of assessing damages in cases such as these is to look not at the conduct which has been found to constitute sexual harassment but to the effect of that conduct on the person harassed. In Hall v Sheiban [1989] FCA 72; [1988-89] 85 ALR 503 the Court rejected the proposition that when determining damages it is appropriate to look at whether the response to the harassment was that of a "reasonable" person: at 525 - 526 per Lockhart J; at 544 per Wilcox J and at 570 per French J. Wilcox J expressed this in the following manner:

"One particular person may react to sexual harassment in a manner which is quite different from the manner in which another person may react. Whilst an unusual reaction may properly excite careful scrutiny, even scepticism, once it be accepted - if it is accepted - that the reaction is a genuine result of the relevant conduct, the complainant is entitled to have damages assessed upon that basis. The damage is not to be ignored or discounted simply because the effect of the conduct on the complainant is usually severe. Expressed in presently relevant pronouns, the rule is the same in other areas of tort law: a sexual harasser takes his victim as he finds her."

Thus, if an action on the part of a respondent which might be considered by some to justify only a small reaction on the part of the applicant engenders a medically justified larger sequelae then the damages are to be measured on the basis of that sequelae and not of the basis of the action. It is therefore not to the point when looking at the medically documented effect of conduct to say words to the effect that "this conduct constituted harassment in the lower range". Statements such as that are justified when considering hurt and humiliation without medically established sequelae but I believe that my assessment of this case must take into account the depressive effect of the respondent's actions deposed to by the applicant and contained in the report of Mr Wenzel.

The difficulty in assessing appropriate damages for hurt and humiliation in discrimination cases has been acknowledged on several occasions: Hall v Sheiban (supra); Commonwealth v HREOC [2000] FCA 1150; Gilroy v Angelov [2000] FCA 1775. Reference is often made to the following comment of May LJ in Alexander v Home Office [1988] 1 WLR 968 at 975:

"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."

It is often the case that the Courts are assisted in this determination by medical evidence in the form of psychological or psychiatric assessments. Given that it is the effect of the accepted acts of harassment and not the act itself that is relevant, it is appropriate that due regard is had to the expertise of the medical profession.

I note that in Commonwealth v Evans [2004] FCA 654, on appeal from a decision of mine, Branson J reduced the award of damages. Her Honour said at [83]:

"In Leslie v Graham [2002] FCA 32; EOC 93-196 I awarded damages of $16 000 for non-economic loss. In Elliott v Nanda [2001] FCA 418; 111 FCR 240 Moore J awarded $15 000 general damages. Each of these was a sexual harassment case and the emotional damage suffered by the applicant was, it would seem, greater than that suffered by Ms Evans."

If the above comment is to be interpreted as meaning that the emotional effect as indicated by the medical evidence provided in each of the cases were on different scales then I believe that the views I have outlined above are in alignment with those of Branson J in Evans. At some point judicial officers are required to assess damages having regard to the individual circumstances before them. A degree of comparison between decided cases is both unavoidable and appropriate. However care needs to be taken to ensure that particular acts are not "rated". To do so ignores the requirement to "consider the effect on the complainant of the conduct complained of": Hall v Sheiban (supra) at 570. The award of general damages in discrimination matters is not intended to be punitive but rather to place complainants in the situation that they would otherwise have been in had the harassment not occurred: Howe v Qantas [2004] FMCA 242; Hall v Sheiban (supra). To do so clearly requires specific reference to a person's individual circumstances.

In Commonwealth v Evans (supra) Branson J queried a statement I made in Evans v National Crime Authority [2003] FMCA 375 relating to an award for non-economic loss in the amount of $20,000. Her Honour was correct in her statements in that I cited the wrong case. The circumstances to which I referred to in Evans actually related to a decision of Wilcox J in Gilroy v Angelov & Anor [2000] FCA 1775, not Hall v Sheiban as stated. I note for the purposes of considering an appropriate award of damages in this case that in Gilroy v Angelov the expert psychological evidence indicated that the applicant's level of depression was well-above average and subsequent reports indicated that her anxiety and depression were increasing.

In the present case the medical evidence presented to the Court and not challenged by the Respondent is that Ms Phillis suffers from a chronic adjustment disorder with mixed anxiety and depressed mood. I accept that the acts of harassment had some emotional effect on the applicant but I also note that according to Mr Wenzel's assessment Ms Phillis has been progressing over the last year and that her future prognosis was favourable. The effects were expressed to be in the minimal range of depression. In these circumstances I believe that an appropriate award for non-economic loss suffered by the applicant is $4,000. There was no claim for economic loss. The Respondent should pay the applicant's costs.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Rapahel FM