CONSIDERATION
30 So far as I am aware, this is the first case in which the Court has been asked to decide on the admission of contested tendency evidence in a proceeding dealing with allegations of sexual harassment. As I have stated above, in my opinion authorities from both this Court in the trade practice areas, and from the field of the criminal law, can assist in considering this application.
31 In the area of sexual offences, there is clear authority for the proposition that the details of the tendency evidence sought to be led may differ from the alleged facts in the proceeding, but if the overall circumstances are sufficiently similar, that may give the evidence enough importance to be characterised as having significant probative value: see R v Harker [2004] NSWCCA 427 at [55]. However these kinds of conclusions will be specific to the proceedings in issue and the nature of the tendency evidence. Nevertheless I have gained some assistance from the analysis in Harker. Especially where reliance is placed on a sequence of conduct, said to constitute a pattern and said to at least in the alternative gain its colour as conduct of a sexual nature by looking at the overall circumstances, it is important in making a determination under s 97 to look at the similarities in the overall circumstances, as well as the close detail of the evidence.
32 Here, those broader matters include: the status of Ms Adamopoulos and Ms Tongue as employees of Rivers, Mr Goodman's position as their boss, the owner of the company and the person in control of the operations of the business, their female gender, their asserted attractiveness, and the occurrence of the same kind of events as those deposed to by Ms Robinson (eg buying trips, fit sessions, photo shoots).
33 I recognise that the approach taken by Reeves J in Richards was one which looked in great detail at each of the representations sought to be adduced. Richards was a trial where there were detailed witness statements, unlike the present proceeding. However, in a case such as the one with which his Honour was concerned, the precise nature of the representations is critical to the cause of action itself and contemporaneity of other representations may also be critical. It was, for example, a critical aspect of Jagot J's admission of other representations pursuant to s 97 in Twynam. In Richards, the tendency evidence consisted of representations made by different financial advisers than the ones who advised the applicant. They had different content and were spread out over long time periods, which in those circumstances clearly reduced their probative value in proving the representations made to the applicant in the terms alleged.
34 In circumstances of allegations of conduct of a sexual nature, the evidence is more likely to be primarily that of the complainant and the respondent. That is the case here. Also here, where some of the conduct is admitted, it is the characterisation of it as sexual (and sexualised) which is in issue. I consider that, by hearing from other female employees about their experiences of similar alleged conduct by Mr Goodman, the probability that the conduct is correctly characterised as sexual may be affected. Indeed, in some respects that is precisely the kind of evidence the respondents are seeking to lead from Ms Mo and Ms Thompson, as I understand the position. Finally, the issue of a pattern of sexual conduct is raised by Ms Robinson in this proceeding, and that feature is not present in the trade practices cases.
35 In my opinion the following evidence is admissible pursuant to s 97. In respect of this evidence, I am satisfied it is of a kind which reveals a propensity in Mr Goodman to act in a particular way towards his female employees, and to say particular things. For the reasons I set out in relation to each Item, I am also satisfied the evidence has significant probative value.
36 Item [17]. This is evidence about the "Bonnie shoot", which has already been the subject of the evidence in chief and cross-examination of Ms Robinson. A photograph from the shoot has been tendered by the respondents. One of the key incidents said to constitute conduct of a sexual nature is alleged to be a re-creation of the "Bonnie shoot". Whether this incident, or the one at which Ms Robinson was present, had sexual connotations or overtones so that it could be said to be conduct of a sexual nature is a key issue before me. The nature of the ultimate photo is very similar. The conduct of the shoot also seems similar. Mr Goodman will, I understand, say such events are a regular feature of the way he prefers to produce his promotional shots. Ms Robinson has a very different view of them. I consider that hearing from Ms Adamopoulos about her participation in the "Bonnie shoot" is capable of affecting the probability of one of the accounts of one of Ms Robinson or Mr Goodman about the shoot where Ms Robinson was present being accurate.
37 Item [20]. This is a remarkably similar allegation of impermissible and inappropriate touching by Mr Goodman, as that made by Ms Robinson. It is a single event, as is the one alleged by Ms Robinson.
38 Items [21], [22] and [23]. This is also remarkably similar, but that is less notable because Mr Goodman admits to a husband/wife pretence when visiting competitors' stores looking at samples. However, the fact in issue is whether this conduct was of a sexual nature. Ms Robinson's case is that it was, because the pretence was carried further than it needed to be by Mr Goodman and because of what he said during this pretence, whether about how clothes looked on her or by calling her pet names. Ms Adamopoulos' account of the details of how Mr Goodman behaved when he underwent the same pretence with her is capable of being important in determining how to characterise this conduct, in terms of whether it was of a sexual nature or not. The evidence about touching I consider capable of affecting the probability that Mr Goodman touched Ms Robinson in public on such occasions (including the bottom-grabbing allegation and the stroking of her face while trying on glasses).
39 Item [26] - the "Madam Lash" comment. Although the making of this is not disputed, it is an unusual name to use. Repetition of it with other female employees may be capable of suggesting a sexual connotation more than isolated use of it with one female employee.
40 Item [30]. The kind of statements made by Mr Goodman in these contexts, and what he conveyed by making them, is in issue in this proceeding. Mr Goodman seeks, as I understand it, to put a business characterisation on them, as relating to assessing the fit of the products. Ms Robinson in contrast emphasises the comments were about her body and not the product and, thus, were of a sexual nature. Ms Adamopoulos' evidence goes over some time, but there is a clearly similar theme to that given by Ms Robinson. Since it is the characterisation of the conduct which matters, I consider the evidence of Ms Adamopoulos is capable of affecting - to a degree which meets the test of significant probative value - the probability of one characterisation or another.
41 I consider Item [35] is admissible. There are several aspects of Ms Robinson's allegations which involve Mr Goodman commenting on her breasts. Once again, as I understand the way in which Ms Robinson's cross-examination has proceeded, Mr Goodman will deny some of those comments, but will otherwise contend Ms Robinson initiated the conversation topic. Ms Robinson's allegations include Mr Goodman talking about breast augmentation and then commenting about (and touching) Ms Robinson's breasts, as well as comments to Ms Robinson about her breasts during a fit session. Ms Adamopoulos' evidence is quite specific in its subject matter and the nature of the comments alleged to have been made. It is not specific as to times and dates but I find, in relation to this kind of evidence, that timing issue is less critical. They are unusual enough kinds of comments for Mr Goodman to be able to deal with by way of recollection.
42 Item [39] is admissible. It relates to allegations of the same kind of conduct by Mr Goodman as Ms Robinson alleges: namely, inappropriate and sexualised touching of female employee's bodies during "fit" sessions. That different kinds of clothes may have been involved is not at all to the point. Once again, these allegations are unusual enough for Mr Goodman to be able to deal with by way of recollection.
43 The remaining evidence is inadmissible.
44 Item [6], although it relates to Ms Adamopoulos' husband, is evidence about a comment about his hair. It relates to an event more than 10 years ago. It is not sufficiently similar to any of the facts pleaded as material to the facts in issue under s 28A. There is no possible sexual connotation. The same is true of Items [8], [9] and [14].
45 Item [10] is more similar to allegations made about Mr Goodman's comments about Ms Robinson's then boyfriend. However, the evidence ranges over more than 14 years and is unspecific.
46 Item [11] calls to mind Ms Robinson's evidence about Mr Goodman's comments to her about affairs and the English "upper class". It might be said this evidence shows a tendency to talk about sexual conduct - that is, affairs, using the ethnicity of a female employee's partner as the purported subject matter. However, again it ranges over 14 years and is still at such a level of generality that I do not find it important enough to affect the probability that Mr Goodman made comments to Ms Robinson about the English upper class and affairs they might have.
47 Item [15], although it seems to deal with discussion about sexual matters, is not sufficiently similar to any of the allegations made by Ms Robinson. There is no particular allegation about Mr Goodman speaking about his wife in the way Item [15] asserts. It also ranges over a long period of time. The same is true of Items [16] and [19].
48 Although Ms Robinson makes a similar allegation to Item [27], hers is centred on the use of these phrases while she and Mr Goodman are out on buying trips. Ms Adamopoulos' evidence is about what occurred in the workplace. The context is too different, and the terms are far less unusual than the "Madam Lash" comment.
49 Item [29] is spread over a range of years, is far too general in nature and insufficiently related to facts relevant to facts in issue, let alone to any facts in issue themselves.
50 Item [36] is spread over the entirety of Ms Adamopoulos' employment with Rivers. It is insufficiently probative of the issue whether Mr Goodman's conduct was sexual in nature and is too general. It is also not sufficiently similar to any evidence given by Ms Robinson. The same is true of Item [40], especially given there is no remotely similar allegation by Ms Robinson.
51 I find Items [44], [45], [46], [47] and [48], in relation to proposed evidence from Ms Tongue, to be in the same category. It is insufficiently probative of the sexual nature of the conduct alleged against Mr Goodman in the present proceeding. The allegations are about different kinds of conduct altogether, and cannot contribute to the proof of any "pattern" as alleged in this proceeding.
52 I have considered whether any of the evidence I have decided is admissible under s 97 should be excluded under s 135. Mr Borenstein made two submissions on this aspect. First, the age of the evidence meant it would be unfairly prejudicial to Mr Goodman to admit it: it lacked any certainty, and it would be very difficult for him to remember events from such a long time ago. Second he submitted the taking of the evidence could result in an undue waste of time in the proceeding - not only because of the time taken to adduce and cross-examine on it, but because there may be other witnesses who would need to be called to respond.
53 Aside from Item 35, most of the evidence I have decided is admissible is from the latter parts of Ms Adamopoulos' employment with Rivers. Indeed, most of it is some years after the "Bonnie shoot" (2001), which is a matter to be introduced into evidence by Mr Goodman. I have excluded the older and more general kind of evidence which the applicant sought to adduce from Ms Adamopoulos. Item 35 is a specific allegation and, because of its content, in my opinion it should stand out in the memory of both Ms Adamopoulos and Mr Goodman, one way or the other. In my opinion, Mr Goodman's ability to recall the events on which Ms Adamopoulos and Ms Tongue will give evidence is a matter I can take into account in assessing the weight I will give to the women's evidence, if it cannot be properly tested because Mr Goodman cannot give evidence and instructions about what they say. However, I doubt that will be the case. The evidence about the pretence of having female employees pose as his wife, his practices of using female employees as models for "fit" and photography sessions, how he behaved with those individuals during those sessions and whether he engaged in conduct such as grabbing the bottom of a female employee, are all matters which in my opinion one can reasonably expect a person in the position of Mr Goodman to be able to recollect and deal with in the evidence. I am confident he will be able to deal with the "Bonnie shoot" evidence because that has been the subject matter of cross-examination of Ms Robinson, on his instructions.
54 As to the second submission, this trial has been set down for three weeks. It seems to me the applicant's evidence is likely to finish by the middle of the second week, at the latest. I consider within the allocated time there will be sufficient time for these two witnesses. Mr Borenstein did not elaborate on who the other witnesses might be and what they might say, nor how long their evidence might take. Without any such details, this aspect of the second submissions lacked persuasive force.