Alleged sexual harassment and sexual discrimination
102 In the applicant's first affidavit (Exhibit 1.1) she refers to some of the text messages and notes exhibited to Ms McKenzie's first affidavit (Exhibit 6.1) and deposes facts that provide contextual or other explanations of apparent inconsistency between her statements to the effect that Mr Heath's sexual advances were unwelcome and the contents of her text messages or her notes.
103 The applicant's allegations of sexual harassment centre on an event that took place on the evening of 16 and 17 January 2015. After that event there were a number of further occasions in which sexual harassment is alleged to have occurred between January and October 2015.
104 During her employment with St Ives the applicant reported directly to Mr Heath. She also reported to Ms De Ronchi. Other members of the executive management team of St Ives during the period of the applicant's employment were Mr Ross-Adams and Ms Rowling. Ms Rowling was marketing manager for retirement villages.
105 The applicant deposes that between April 2014 and 16 January 2015 she had a series of interactions with Mr Heath during which Mr Heath expressed his affection and romantic interest in the applicant. The applicant then describes an event on 16 January 2015 that took place at the applicant's home after a marketing function that Mr Heath and the applicant had attended at a restaurant. The applicant describes interactions with Mr Heath during the function, including the consumption of alcohol, and interactions between Mr Heath and the applicant that again suggested Mr Heath had affection and romantic interest in the applicant. The incident at the applicant's home took place while her husband, from whom she was estranged, was asleep upstairs. The applicant alleges that Mr Heath grabbed her, forcibly kissed her and attempted to put his hand up her dress. The applicant resisted Mr Heath's advances and told him no, after which Mr Heath explained that he wished to expand his relationship with her from a working relationship to a romantic relationship. Mr Heath again kissed the applicant and she again broke away from him saying words to the effect of no. Mr Heath continued to kiss her and each time he grabbed her to kiss her, she would freeze. He also groped various parts of her body. The applicant pulled away from him, stood up and said 'you have to leave immediately we can't'. After a short time, Mr Heath then left.
106 The applicant deposes that the sexual advances and comments that Mr Heath made had left her extremely shocked, confused, distraught, stressed and anguished. She said 'I didn't want them and I did not think I had looked for them. I don't think I ever flirted with him in the past.' She said Mr Heath's action left her feeling violated, disturbed about his adultery and concerned that her husband had heard what had happened between them. She said that within hours of Mr Heath leaving her home, she began to physically shake in the body, curled up in a ball on the floor, repeatedly vomited severely, suffered from extreme diarrhoea, ruminated and called out for her deceased sister, sent distressed text messages to her friend, Mr Ronald Woods, and suffered severe stomach cramps.
107 After Mr Heath left the applicant's home, he sent her a text message 'awesome day / night X' at 1:06 am on 17 January 2015. After about eight minutes, the applicant replied 'Way (& very pleasantly) beyond my expectations. Thank you x'. There followed a series of exchanges. The effect of these text messages suggests that the applicant was not shocked, confused, distraught, stressed and anguished, had not felt violated or disturbed about Mr Heath's adultery or concerned that her husband had heard what had happened between them. Nor does the text exchange suggest that Mr Heath's actions were unwanted sexual advances. However, the applicant deposes by way of explanation that:
I was worried about the effect of my rejection of Mr Heath's unwanted sexual advances on my job as he had demonstrated retaliatory behaviour before, ... and I did not know how to respond to his text message. I eventually replied with a text message to placate him.
108 On 6 April 2015, about two months later, the applicant made notes of the events on 16/17 January 2015. Those notes were exhibited to her affidavit. The notes are not entirely coherent and appear in the form of something like a stream of consciousness. Taken as a whole, it is difficult to decipher the extent to which, if at all, these reveal that Mr Heath's advances on 16 January 2015 were or were not unwanted at the time those advances were made.
109 The applicant deposes that she was admitted to hospital on 17 January 2015. The applicant said that was as a consequence of her repeatedly vomiting. She was discharged later on 17 January 2015.
110 On 18 January 2015, there was another exchange of text messages between the applicant and Mr Heath. Again, none of those messages suggest that, from the applicant's perspective, his conduct at the applicant's home was unwanted. The general tone of the exchanges is consistent with flirtation between the applicant and Mr Heath.
111 On 21 January 2015, there was, again, an exchange of text messages between the applicant and Mr Heath. The applicant described a text she sent to Mr Heath as an inquiry as to whether they were going to talk about the events of 16 January 2015 at a work meeting that was to take place at Mr Heath's home on 23 January 2015. The text said 'have been thinking about that potentially exciting role expansion we discussed Friday. Do you want to discuss on Fri morn@ yr house, or separate catch up?' Mr Heath replied 'I think separate is best hey otherwise we might not talk about work at all!!! Ok with you?'
112 The applicant deposes that when she returned to work the following week, she made a complaint about the 16 January 2015 event to Ms De Ronchi and Ms Rowling.
113 The applicant deposes that she met with Mr Heath on 3 February 2015 to discuss the events of 16 January 2015 and his desire for a romantic relationship with her. Various matters were discussed at the meeting and at the conclusion of it, she said they had agreed not to allow anything to develop between them outside working relationship. Notwithstanding that, after the meeting Mr Heath continued to send text messages to the applicant. Including an exchange of text messages between Mr Heath and the applicant on 3 February 2015.
114 From that exchange it is not obvious that there was a decision made to the effect that Mr Heath would not pursue a romantic relationships with the applicant. Nor do the applicant's responses suggest that Mr Heath so doing was not welcome. Nonetheless, the applicant explains her responses as follows:
I did not respond to these messages immediately as I suffered another panic attack due to the text messages. I eventually sent a response as I was fearful of Mr Heath's reaction or of losing my job if I did not send a text message.
115 The applicant deposes to another incident on 10 February 2015 in which she described three scenarios in three boxes to Mr Heath being:
(a) Box 1 for a purely work relationship;
(b) Box 2 for a 'special' friendly working relationship; and
(c) Box 3 for a romantic relationship, which was where he was during the January events.
116 Box 2 involved the applicant and Mr Heath being in a working relationship which would lead to a romantic relationship after waiting a year for Mr Heath's daughter to finish school. The applicant informed Mr Heath that she thought he was after Box 2, he said 'Yes, but I'm still going to call you 'hot''. The applicant replied that he could not say that. During the discussion, Mr Heath again asked for regular personal contact with the applicant. The applicant did not offer much in response because she was worried about losing her job.
117 The applicant describes another incident whereby Mr Heath grabbed her right hand and said that she had to be affectionate with him as he loved affection. She said she was both scared and frustrated as she had informed him earlier that he could not call her 'hot', but seemed to think that holding her hand without her consent and demanding her affection was acceptable. Later that day the applicant sent Mr Heath a text message to confirm the substance of what had been said and that Box 3 was not an option. The text said 'Acknowledging Box 3 is closing/closed - have 2 be honest & say best part of day was car moment after ...'
118 There are a number of other texts messages of a personal nature between the applicant and Mr Heath during February 2015. The applicant said that she had a panic attack on 11 February 2015 over her attempts to tell Mr Heath that she was not interested in him romantically. She also requested a day of leave as she did not want to go into the office to face him. Again, the tone of the text exchanges on 11 February 2015 does not suggest that Mr Heath and the applicant were engaged only in a working a relationship. After Mr Heath responded that the applicant could have annual leave, she replied 'Thank you! In return, I will take responsibility for picking restaurant. Fair deal?'
119 The applicant describes an incident on 16 February 2015 where she raised the January events with Mr Heath and she said that she was worried it would affect their working relationship. She indicated that she was angry with him. As she went to leave his office at the end of the meeting he insisted that she hug him and he came towards her to embrace her. She did not know what to do and froze which allowed Mr Heath to put his arms around her. She said the contact was unwelcome and she left his office in silence.
120 Later that day she sent a text message to Mr Heath 'You seriously have the softest hands! From - Not angry anymore :)'. The applicant explains that she was worried and stressed that she had upset Mr Heath because she was not interested and he might 'hit back' at her so she sent him that text message.
121 The applicant deposes that following these incidents, she continued to receive personal inappropriate text messages from Mr Heath and these were often on weekends and late at night. The messages were annexed as an exhibit to her affidavit.
122 Between 27 April 2015 and 22 June 2015, the applicant was on annual leave. She had informed Mr Heath that part of the reason she took leave was because of his actions. During her annual leave, Mr Heath attended her home on 8 June 2015. The applicant deposes facts to the effect that during that meeting Mr Heath professed his love for her. She indicated that she was not interested romantically in him. He, again, attempted to touch her. She pulled back violently, shouting no and they resolved that they would be friends and Mr Heath promised not to terminate her employment. Again, there was an exchange of text messages between the applicant and Mr Heath on 9 June 2015, the tone of which was not consistent with the applicant's evidence of the meeting on 8 June 2015.
123 On 10 June 2015, the applicant sent Mr Heath a series of 60 text messages between 3:58 am and 10:39 am, none of which were answered by Mr Heath until 8:19 am. The applicant explains that:
On 10 June 2015, I began to worry about the look Mr Heath gave me at the end of our meeting on 8 June 2015 and if it would have any negative impact on my job. I also thought that the situation between Mr Heath and I would never come to an end and I did not know how to deal with the situation. I send him a long string of text messages early that morning in an effort to try and finally put an end to his feelings of romance between us without causing any hurt to his feelings and risking the safety of my job.
124 On 15 June 2015, while still on annual leave, the applicant had another meeting with Mr Heath at her house to which she says she reluctantly agreed. The applicant says that she again said there could not be any romantic relationship between them. After that meeting with Mr Heath, the applicant had an exchange of text messages with Ms De Ronchi. The tone and contents of those messages do not suggest that the applicant was uninterested in a romantic relationship with Mr Heath.
125 On 19 June 2015, the applicant and Mr Heath had another exchange of text messages that suggests that there may have been a consensual romantic relationship of some kind between Mr Heath and the applicant. The applicant deposes to facts that sought to place that message into context and that there had been a suspicion of 'an inappropriate relationship between Mr Heath and '[the applicant]'. The applicant deposes that Mr Heath's unwanted behaviour towards her continued until sometime in July 2015 when she noticed a sudden significant change in attitude and behaviour towards her.
126 In addition to the text messages and notes to which the applicant refers in her first affidavit, St Ives identified approximately 280 text messages and 33 notes in its written and oral submissions that it submits are inconsistent with the applicant's assertion that Mr Heath's sexual advances towards her were unwelcome. It is unnecessary to make reference to all these documents. They are of a similar nature to the documents to which the applicant has referred. These documents to greater or lesser degrees are inconsistent with the applicant's statements to the effect that Mr Heath's sexual advances were not welcome. However, the applicant's explanations for her text messages to Mr Heath (fear or reprisals) extend to all her communications with him. The applicant's notes to which St Ives has referred are largely not coherent and are ambiguous.
127 St Ives has also identified text messages between the applicant and Ms De Ronchi and the applicant and Ms Rowling that suggest that Mr Heath's alleged sexual advances were subjectively welcome and not unwelcome. Again, some of these messages are referred to and explained in the applicant's first affidavit. For example, the applicant deposes to facts that included exhibiting an exchange of text messages between Ms De Ronchi and the applicant on 20 January 2015. The text exchange relevantly was as follows:
(1) The applicant sent a text message to Ms De Ronchi: 'The potential role expansion [Mr Heath] suggested is both exciting, scary and somewhat freaken me out But lots of time to consider!'
(2) Ms De Ronchi responded: 'Don't freak out lady I am in your corner! As long as u want what is on offer (boy wise) and u not feeling pressured all is good u both deserve happiness! We could do dinners n wine!'
128 The applicant explains that she used the term 'role expansion' as code for Mr Heath's desire to pursue a romantic relationship with her. The applicant provided some other commentary on the contents of the text messages and their meaning that is not strictly admissible as evidence. Whatever the subject matter of the text exchange, it does not indicate that the applicant found Mr Heath's conduct unwanted or that she was reporting an allegation of unlawful sexual harassment to Ms De Ronchi.
129 As to the contents of the notes the applicant evidently created and the exchanges between the applicant and each of Ms De Ronchi and Ms Rowling, these are largely what may be considered prior statements of the applicant relating to the events of January, February and June 2015. These are, of course, hearsay statements or, in the language of the Evidence Act 1995 (Cth), previous representations. The admissibility of previous representations at a trial is, of course, subject to specific rules of evidence. Generally, evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation: s 59 of the Evidence Act. An exception is an admission against interest: s 87 of the Evidence Act. There are also special rules around cross-examining a person about a previous representation: s 44 of the Evidence Act. The status and admissibility of the applicant's previous representations in her notes and text exchanges are matters better left to determination at a trial where the tender of them would be in accordance with the provisions of the Evidence Act. In the setting of a trial the credibility of the applicant's evidence-in-chief and its consistency or otherwise with previous representations may be tested and the applicant's explanations assessed. These are not matters that lend themselves to easy or just resolution on an interlocutory application determined on untested and contested affidavit evidence.
130 Further, having regard to the abbreviated nature of the communications in the text messages, the explanations the applicant has given and the incoherent 'stream of consciousness' contents of the applicant's notes, these documents are open to interpretation. I do not regard them as presenting a consistent and 'undisputed' and contemporaneous record of prior statements (or previous representations) of the applicant that are unequivocally inconsistent with the facts to which she deposes in her first affidavit. To the extent that the documents are evidently inconsistent with the facts the applicant deposes, the applicant's explanations given in her affidavit are not inherently improbable or implausible. While the text messages and notes provide reason to doubt the veracity of the applicant's statements of fact, it is not possible to resolve that doubt without hearing the applicant's oral evidence and explanations under cross-examination. If the evidence were to remain as it is, a court could accept the applicant's explanations and reach the conclusion that Mr Heath made unwelcome sexual advances or engaged in other unwelcome conduct of a sexual nature in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the applicant would be offended, humiliated or intimidated. There is a serious question to be tried. The applicant's allegations are reasonably arguable and not fanciful.
131 It follows that, in my view, the evidence is capable of supporting the matters pleaded in paras 8(d)(i), 14-25 and 44 of the statement of claim to the effect that Mr Heath's conduct was unlawful sexual harassment contrary to s 28B of the SD Act. Further, that St Ives is vicariously liable for that conduct. Likewise, the evidence is also capable of supporting the matters pleaded in paras 8(d)(i), 32, 33(a), 34, 35(a), 36, 37(a) to the effect that Mr Heath's conduct was unlawful sexual discrimination and, through him, St Ives, as the employer and body corporate, acted contrary to s 14 of the SD Act. It was not contended that Mr Heath could not independently, through s 105 of the SD Act or otherwise, contravene s 14 of the SD Act because he was not the applicant's employer. Therefore, for the purposes of the leave application, I will assume, without deciding, that the facts also disclose reasonably arguable allegations of sexual discrimination by Mr Heath contrary to s 14 of the SD Act.