Taylor v August and Pemberton Pty Ltd - [2023] FCA 1313 - FCA 2023 case summary — Zoe

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Taylor v August and Pemberton Pty Ltd

[2023] FCA 1313

Federal Court of Australia|2023-10-31|Before: Katzmann J

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Source facts

Court

Federal Court of Australia

Decision date

2023-10-31

Before

Katzmann J

Source

Original judgment source is linked above.

Judgment (89 paragraphs)

[1]

Introduction 1 Fiona Taylor complains that she was sexually harassed by Simon Grew over a period of about 22 months while she was employed by his company, August and Pemberton Pty Ltd t/as Grew & Co, and claims that Mr Grew victimised her after she complained. She alleges that Mr Grew's conduct breached her contract of employment and was unlawful under the Sex Discrimination Act 1984 (Cth) (SDA) and the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act). She seeks various forms of relief from Grew & Co and Mr Grew himself. The claims were vigorously contested and the credit of the two protagonists is squarely in issue.

[2]

The background facts 2 Nonetheless many of the facts were uncontroversial. The following account is derived from an agreed statement, the documentary evidence, and undisputed testimony. 3 Grew & Co is a small business which manufactures and sells fine jewellery. It was established in 2007 by Mr Grew, who is a jeweller, designer, the manager of the business, and the sole director of the company. 4 Ms Taylor accepted an offer of employment from Grew & Co on 30 November 2017. At the time she was employed by Larsen Jewellery. The previous day Mr Grew sent her an email stating, among other things: I think you will be an asset to our company and I also think you will have creative opportunities and professional growth within Grew & Co that will far exceed your available potential within the structure and management of Larsen Jewellery. Often new opportunities come with the element of risk which in this case for both of us is now financial, by meeting you in the middle we both have the incentive to make the opportunity work and be profitable in the future. Think it over, let me know how you feel. I want to make G&Co the most forward thinking and performing brand with[in] the Australian jewellery industry, it would be great to have you on board with that. 5 Ms Taylor was employed by Grew & Co from 18 January 2018 until 6 April 2022, reporting directly to Mr Grew. Ms Taylor was born on 14 September 1988, which means that when she began working for Grew & Co she was 29 and ceased when she was 34. Mr Grew is 10 years her senior. 6 The terms of her contract included those set out in an email from Mr Grew on 9 December 2017: As we discussed your position will be full time, from Tuesday to Saturday and we have agreed to $65k + super commencing on January 18, 2018. Your role will involve managing client enquiries and project management, liaising with suppliers and diamond & gemstone sourcing as well as managing consignments. Your role will also involve working with clients as a creative representation of Grew & Co. The title on your business cards will be "Couturier of fine jewellery" however we can work on your title within the business which will be a mix of project management and creative. 7 It was an implied term of the employment contract that Grew & Co would take reasonable care to provide her with a safe place of work. 8 Ms Taylor was educated to year 12 level. She enrolled in a Bachelor of Fine Arts at the University of New South Wales, majoring in jewellery design, but discontinued after two years. Her previous job as a "studio assistant" with Larsen Jewellery lasted about 18 months. Before that she worked in the music industry as a "booker" for bands. 9 When she started working for Grew & Co, Ms Taylor was one of six employees, all of whom reported directly to Mr Grew. Mr Grew, Ms Taylor and two other employees - Andrew Snow and Mai Vu - worked from the Sydney premises of Grew & Co at 350 George Street Sydney. Three employed jewellers worked in an off-site workshop. There was no human resources (HR) department and "no HR person" on the staff. Anyone who had an issue had to raise it directly with Mr Grew. 10 Ms Taylor was excited to join Grew & Co. She considered the culture was friendly and welcoming. She enjoyed the company of those with whom she worked. She felt that she "finally" had a boss who recognised her talents and championed them. Mr Grew told her "constantly" how valuable she was to the business and that she did "an amazing job". He also told her she was a "superstar". She felt like she had found her dream job. 11 Ms Taylor began as a sales consultant or, as she put it, in a "customer service sales role". But over time she took on more responsibilities and by late 2018 she became "production manager". Around this time, Grew & Co relocated to premises at 161 Clarence Street Sydney. From then on she shared an office with Mr Grew. 12 As Mr Grew put it, in her role as production manager Ms Taylor "fundamentally manag[ed] the entire stages of the production of jewellery within the workshop". That involved liaising with sales staff and designers, sourcing gemstones and diamonds, creating job packets, responsibility for quality control, and, for a time, managing Grew & Co's Instagram account. It is common ground that she performed very well. Mr Grew said she was "organised, consistent and … motivated", and "really efficient". He described her as "a trusted and great asset to the company". 13 Ms Taylor and Mr Grew often worked in close proximity to each other. Their conversations were not confined to work-related matters. Mr Grew was aware that Ms Taylor was in a relationship when she started working at Grew & Co and during the course of her employment they spoke about the problems she was having in the relationship. 14 At the time Ms Taylor joined the staff of Grew & Co, Mr Grew was married. In about August 2018 he and his wife separated. He informed Ms Taylor first before telling all the other employees individually. 15 From about this time, Mr Grew gave Ms Taylor numerous gifts, which she alleges were unwelcome. Mr Grew was also generous to other members of staff, although not to the same extent. 16 Ms Taylor gave Mr Grew a birthday present in 2019 and Christmas presents in 2018 and 2019. She also organised a group gift for Mr Grew's birthday in 2018. 17 Ms Taylor and Mr Grew often communicated by text. The text messages reproduced in these reasons appear in their original form, without correction for errors in spelling or punctuation. Many of the texts were personal in nature and in at least one of them Mr Grew praised her appearance. He also admitted to telling Ms Taylor that she had a beautiful body. 18 In January 2020 Mr Grew revealed to Ms Taylor that he had developed "feelings" for her. She was overwhelmed by the revelation. Ms Taylor made it clear to him that she was not interested in a romantic relationship with him. There was a dispute about whether she did so at the time, but for present purposes at least it does not matter. 19 The following month Ms Taylor and Mr Grew were due to take a business trip to attend an international gem and mineral exhibition (the Gem and Mineral Show) in Tucson, Arizona. Before they left Ms Taylor informed Mr Grew, via text, that she was feeling anxious about the trip and wanted to put down some boundaries. 20 In mid-March 2020, in response to the COVID-19 pandemic, Mr Grew directed all employees to work from home except for Asato Tanaka, another jeweller, and Ms Taylor. Mr Grew offered to reimburse his employees for parking costs and tolls incurred by driving into work during this time. 21 On 1 June 2020, after driving Ms Taylor home from work, Mr Grew and Ms Taylor had a conversation in which he revived the subject of his January 2020 revelation which caused Ms Taylor considerable distress. 22 Ms Taylor did not attend work from 2 June 2020 until 8 June 2020 and last attended work for Grew & Co on 7 August 2020. Psychiatrists retained for both parties to the litigation consider she has a psychiatric disorder to which, if her history is accepted, the events she described substantially contributed. 23 On 28 August 2020 Ms Taylor, through her lawyers, complained that Mr Grew had sexually harassed her. The letter generated a combative response. 24 On 23 September 2020 she lodged a complaint with the Australian Human Rights Commission (AHRC). The complaint was terminated in accordance with s 46PH(1B)(b) of the AHRC Act because the President, through her delegate, was not satisfied there were reasonable prospects of the matter being settled by conciliation. 25 Ms Taylor resigned from Grew & Co on 6 April 2022. She found other, less rewarding, work in Queensland.

[4]

The lay witnesses 28 Six lay witnesses gave evidence, including Ms Taylor and Mr Grew. 29 Ms Taylor was the only witness in her case. Although she had foreshadowed through her counsel that her sister, Sonia, would also be called, Sonia was not called. But the respondents made nothing of that. In particular, they did not submit that the Court should infer from her absence that nothing she could say would assist Ms Taylor's case: see Jones v Dunkel (1959) 101 CLR 298. And I draw no such inference. 30 Mr Grew submitted that Ms Taylor was "far from a satisfactory witness". He claimed that her evidence changed, was embellished in parts, was self-serving, and at times incredible. I put to one side the submission that the evidence was self-serving. That could be said of the evidence of any party to any proceeding. It is true that there were some inconsistencies in her accounts. But inconsistencies are not necessarily the product of dishonesty. They may be the product of faulty recollection. Ms Taylor was cross-examined at length. By and large I found her to be an impressive witness. She was never defensive, evasive or aggressive. She appeared to answer the questions honestly. While some aspects of her evidence appeared to be reconstructions of events, rather than genuine recollections, and some of her answers appeared, as the respondents submitted, rather formulaic, I do not consider that she was dissembling. She made reasonable concessions and did not appear to exaggerate her claims. There were few inconsistencies and much of her evidence was supported by contemporaneous documents. 31 Mr Grew gave evidence, together with four of his current and former employees: Andrew Snow, Asato Tanaka, Mai Vu, and Ayesha Nicholson-Black. 32 Mr Grew presented well in examination in chief. But in several respects his evidence was inconsistent and when that was pointed out to him in cross-examination he became defensive. Unlike Ms Taylor, he failed to make reasonable concessions. At times he was aggressive in his responses and often evasive. When he was obviously uncomfortable with the line of cross-examination he appeared unwilling to give direct answers to simple questions. Aspects of his account strained credibility. 33 Mr Snow came across as honest, sincere and genuine. I also formed a favourable impression of Ms Nicholson-Black and Mr Tanaka. There is no reason not to accept their evidence and Ms Taylor made no submission to this effect. 34 On the other hand, Ms Vu appeared rehearsed in examination in chief and defensive under cross-examination. She struggled to give direct answers and did not make reasonable concessions. I consider that her evidence was affected by her obvious loyalty to Mr Grew, for whom she continues to work.

[6]

The statutory context 37 The prohibition against sexual harassment appears in Pt II Div 3 of the SDA. 38 Section 28B(2) relevantly provides that it is unlawful for one employee to sexually harass another. Ms Taylor's pleading contains no allegation that Mr Grew was an employee of Grew & Co although that was plainly a material fact that should have been pleaded. Nevertheless, the case was defended on the basis that, if Mr Grew were found to have contravened the SDA, Grew & Co is liable. The respondents admitted as much in the statement of agreed facts. I infer that it is common ground that Mr Grew was an employee of Grew & Co as well as its sole director and manager. 39 In any case, s 28B(1) relevantly provides that it is unlawful for a person to sexually harass an employee of the person. References to a person in any Commonwealth statute include both corporations and individuals: Acts Interpretation Act 1901 (Cth), s 2C. Thus Grew & Co is a person for the purpose of s 28B(1). 40 Section 106 of the SDA renders a person vicariously liable for unlawful discrimination and sexual harassment committed by its employee or agent unless the employer took all reasonable steps to prevent conduct of that kind. It provides: (1) Subject to subsection (2), where an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent: (a) an act that would, if it were done by the person, be unlawful under Division 1 or 2 of Part II (whether or not the act done by the employee or agent is unlawful under Division 1 or 2 of Part II); or (b) an act that is unlawful under Division 3 of Part II; this Act applies in relation to that person as if that person had also done the act. (2) Subsection (1) does not apply in relation to an act of a kind referred to in paragraph (1)(a) or (b) done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph. 41 If Mr Grew was not an employee of Grew & Co, he was its agent. 42 Section 28B is a remedial provision in legislation intended to protect human rights and should therefore be broadly construed: Ewin v Vergara (No 3) [2013] FCA 1311; 307 ALR 576; 238 IR 118 (Bromberg J) at [32] (appeal dismissed: Vergara v Ewin (2014) 223 FCR 151 per North, Pagone and White JJ). Further, as Bromberg J observed in Ewin v Vergara at [37], "temporal considerations", such as whether the conduct in question occurred during working hours or while the people in question were working, are not mentioned and the legislation was not intended to be limited by considerations of that kind. 43 "Sexual harassment" is defined in s 28A of the SDA. At all relevant times it read as follows: Meaning of sexual harassment (1) For the purposes of this Division, a person sexually harasses another person (the person harassed) if: (a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or (b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed; in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated. (1A) For the purposes of subsection (1), the circumstances to be taken into account include, but are not limited to, the following: (a) the sex, age, sexual orientation, gender identity, intersex status, marital or relationship status, religious belief, race, colour, or national or ethnic origin, of the person harassed; (b) the relationship between the person harassed and the person who made the advance or request or who engaged in the conduct; (c) any disability of the person harassed; (d) any other relevant circumstance. (2) In this section: conduct of a sexual nature includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing. 44 In Ewin v Vergara at [27] Bromberg J explained the meaning of "unwelcome" for the purposes of s 28A: In the context of conduct which is directed (intentionally or not) by one person to another or others, "unwelcome" simply means conduct that is disagreeable to the person to whom it was directed. In Aldridge v Booth (1988) 80 ALR 1 at 5; 15 ALD 540, Spender J described unwelcome conduct as conduct that was not solicited or invited and was regarded as undesirable or offensive by the person to whom it was directed. That understanding was adopted by Wilcox J in Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 at 247; 85 ALR 503 at 531 (Hall) and by Mansfield J in Poniatowska v Hickinbotham [2009] FCA 680 at [289] (Poniatowska). 45 In Spencer v Dowling [1997] 2 VR 127 at 156, Hayne JA considered the meaning of "sexual advance". His Honour observed that "[i]n ordinary usage, "advance" may mean (as the Oxford English Dictionary 2nd ed. tells us) "a personal approach, a movement towards closer acquaintance and understanding; an overture" including an amorous overture or approach. Whether or not in a particular case an approach or overture amounts to a "sexual advance" may involve difficult questions of fact and degree. Not every proposal for social contact will be a sexual advance. 46 As Bell P and Payne JA observed of the phrase "other unwelcome conduct of a sexual nature" in the analogue of s 28A in the Anti-Discrimination Act 1977 (NSW), it is "of broad import" and "should not be read down or confined by limits or restrictions which do not appear in the statute": Vitality Works Australia Pty Ltd v Yelda (No 2) (2021) 105 NSWLR 403 at [97]. Over a decade earlier, in Poniatowska v Hickinbotham [2009] FCA 680 at [294], Mansfield J acknowledged that s 28A(1)(b) and (2) were intended to extend the circumstances of sexual harassment beyond the scope of s 28A(1)(a) but said that he thought "it involves some conduct which invites or otherwise explores the prospect of the object of such conduct participating or engaging in some form of sexual behaviour or which suggests that the object of such conduct may have done so or may do so, or is a person of a character empathetic to such behaviour". That said, his Honour added that it is neither necessary nor appropriate to set the outer bounds of "conduct of a sexual nature". And in Vitality Works at [105] Bell P and Payne J agreed. 47 As Perram J observed in Hughes (t/as Beesley and Hughes Lawyers) v Hill (2020) 277 FCR 511 at [21]-[25] (Collier and Reeves JJ agreeing at [1] and [2] respectively), there are essentially three elements to the definition in s 28A. First, the Court is required to determine whether any of the forms of conduct mentioned in subs (1) have occurred. Obviously enough, that is a question of fact. Second, if such conduct occurred, it must have been unwelcome to the person harassed, whom I shall call the complainant. That, too, is a question of fact. But it is a subjective question, the answer to which turns only on the attitude of the complainant at the time the conduct took place. Third, even if these two elements are satisfied, the ambit of the section is limited by an objective criterion, namely that the unwelcome conduct occurred in circumstances in which a reasonable person would have anticipated the possibility that the complainant would be "offended, humiliated or intimidated" by it. 48 In other words, it is not enough that the conduct was unwelcome. Nor is it enough that the complainant was offended, humiliated or intimidated by it. If the circumstances were such that a reasonable person would not have anticipated that was a possibility, the definition is not satisfied and the case must fail. 49 In Hughes at [26], Perram J explained that for the purposes of determining whether the objective criterion is satisfied: [T]he reasonable person is assumed by the provision to have some knowledge of the personal qualities of the person harassed. The extent of the knowledge imputed to the reasonable person is a function of the 'circumstances' which the provision requires be taken into account. Mention has already been made of the nature of the relationship between the harasser and the harassed … The canvas is broad. 50 The intention of the alleged harasser is entirely irrelevant. Bell P and Payne JA remarked in Vitality Works at [98]: As to the subject matter, scope and purpose of the Anti-Discrimination Act, it cannot seriously be suggested that the subjective intention of the alleged perpetrator has anything to do with proof of the statutory prohibition. If it were otherwise, an important societal norm would rest on the subjective opinions of the putative sexual harasser. In effect, the greater the subjective tolerance of sexually inappropriate conduct on the part of the sexual harasser, the more difficult sexual harassment would be to prove. That conclusion needs only to be stated to be rejected. 51 Moreover "conduct of a sexual nature" may be explicit or implicit, as the Court of Appeal recognised in Vitality Works. And conduct which, when considered in isolation, appears to have no sexual connotation may still amount to "conduct of a sexual nature" or, for that matter, a "sexual advance". The conduct in question must always be assessed in its context: see, for example, Kraus v Menzie [2012] FCA 3 at [45] (Mansfield J). Indeed, as Bell P and Payne JA said in Vitality Works at [101], in determining whether particular conduct meets the description of "other unwelcome conduct of a sexual nature", "context is everything". In Kraus, with respect to the presentation of a gift by an employer to an employee, Mansfield J concluded that, having regard to the nature of the gift (a jacket) and the fact that "the occasion took place overtly", his Honour was not persuaded that the conduct had "sexual undertones". He acknowledged, however, that: The conclusion would or might be different if there were repeated unsolicited gifts, which in fact were unwelcome, even if the gifts were not patently sexual in nature, as their character may be determined from all the circumstances. 52 I respectfully agree with the observation of McCallum JA in Vitality Works at [125] that: The sexualisation of women in the workplace often isn't [explicit]. Innuendo, insulation, implication, overtone, undertone, horseplay, a hint, a wink or a nod; these are all devices capable of being deployed to sexualise conduct in ways that may be unwelcome … The suggestion that conduct cannot amount to sexual harassment unless it is sexually explicit overlooks the infinite subtlety of human interaction and the historical forces that have shaped the subordinate place of women in the workplace for centuries. The scope of the term "conduct of a sexual nature" in s 22A of the Anti-Discrimination Act is properly construed with an understanding of those matters. The same must be said of the identical expression in s 28A of the SDA. 53 Furthermore, the failure to make a contemporaneous complaint or to inform the alleged harasser at the time that the conduct in question is unwelcome does not (at least without more) signify the converse.

[7]

Mr Grew's feelings for Ms Taylor 54 It is common ground that in early January 2020 Mr Grew declared his feelings for Ms Taylor. I will come to that in due course. But that was not a sudden development. 55 In his evidence in chief Mr Grew testified that he started to develop some feelings for Ms Taylor over December 2019. In cross-examination, however, he clarified that that was the time he realised he had feelings for her. The two are not necessarily synonymous. 56 It is entirely possible, if not likely, that Mr Grew's feelings for Ms Taylor had developed earlier, perhaps much earlier, whether or not he recognised it at the time. In cross-examination, he accepted that Ms Taylor was an attractive woman, describing her as "a pretty person". They worked in close proximity to each other and, it seems, quickly developed a close working relationship that was pleasurable to both of them, at least for a period of time. They discussed all manner of things during working hours, some work-related, some not. 57 It was put to Ms Taylor in cross-examination that it would not be unusual for her to seek Mr Grew's attention by touching his shoulder or squeezing his arm. She accepted that she would tap him on the shoulder but denied squeezing his arm. In cross-examination Ms Taylor revealed that, when she would place finished products on her hand to see how they looked, Mr Grew would come over and touch her hand, without being invited to do so. Before she knew he had feelings for her, she had had no difficulty with that. Afterwards, however, it made her feel uncomfortable. 58 On 10 August 2019, four months before Mr Grew says he started to develop feelings for Ms Taylor, Ms Vu sent the following text to Ms Taylor: 59 Ms Taylor agreed she would not tell Mr Grew. 60 Ms Vu conceded in cross-examination that she believed Mr Grew had feelings for Ms Taylor at this time. While this matter was not explored further, for reasons which will become apparent I have no doubt that, by this time, or indeed earlier than then, Mr Grew had feelings for Ms Taylor in that he was attracted to her and that some of the gifts were, at least in part, an expression of those feelings.

[9]

The extent of the dispute 62 The respondents accepted that the Chanel coin purse, the jade bangle, and the silver signet ring were gifts but put in issue the allegations that Mr Grew gave Ms Taylor any of the following items: the gold signet ring; the channel set diamond ring (a stock item he had seen her wear from time to time); the white gold hammered band ring; the 5 mm silver ring; and the 10 mm silver ring. 63 The respondents accepted that Mr Grew gave the other items to Ms Taylor but denied that they were unsolicited and/or gifts. 64 The respondents also disputed that statements allegedly made, and text messages sent to, Ms Taylor, praising her and her appearance were unsolicited. 65 In the event that the items and remarks are found to have been unsolicited, the remaining questions are first, whether the conduct was "unwelcome conduct", "conduct of a sexual nature", and/or a "sexual advance"; second, whether the conduct took place in circumstances in which, having regard to all the circumstances, a reasonable person would have anticipated the possibility that Ms Taylor would be "offended, humiliated or intimidated"; and third, whether Mr Grew contravened s 28B(2) of the SDA. 66 Ms Taylor gave evidence to support the allegations relating to all the alleged gifts except for the channel set diamond ring. 67 Despite the absence from Ms Taylor's evidence of any mention of Mr Grew giving her a channel set diamond ring, it was put to Mr Grew in cross-examination (without objection) that, having seen her wear the ring, he told her she could have it if she liked. Mr Grew rejected the proposition. Consequently, there is no evidence to support the allegation in the pleading that the channel set diamond ring was a gift. 68 In evidence, Mr Grew agreed that he gave Ms Taylor all these things, except for the gold signet ring, the channel set diamond ring, the white gold hammered band ring, the 5 mm silver ring and the 10 mm silver ring. 69 He also agreed that many of these items were gifts. He sought to explain them, however, by reference to a reciprocal culture of generosity at the workplace and by pointing to gifts he had made to other employees as well. He also claimed that Ms Taylor had asked for many of them.

[11]

The emerald and diamond platinum ring 73 This was a ring consisting of a platinum band, with a large emerald bordered by two smaller emeralds and two diamonds. 74 Ms Taylor gave evidence that, in around September 2018, Mr Grew asked her to start "designing pieces and creating some layouts for pieces". She came across some emeralds in the safe at work and created a layout which appealed to her. She then approached Mr Grew and asked whether it would be "okay" if she created a ring for herself. He readily agreed. Mr Grew's evidence was to the same effect. 75 She testified that he then informed her "[w]e do it at a wholesale cost for staff". She said she asked him to get back to her with "some pricing" but, while he agreed to do so, he never did. 76 After the ring was made, Mr Grew approached her and asked to see the ring on her hand. She obliged and inquired: "How much do I owe you for this?" Mr Grew replied: "I don't want any payment. It's a gift. You bring so much value to the company". Ms Taylor was "quite shocked and overwhelmed" as this was the second gift she had received from Mr Grew within a couple of weeks. Again, she thanked him because she did not want to offend him or appear ungrateful. It was put to her in cross-examination that she did not indicate any hesitation in accepting the gift. She rejected the proposition. She said she paused to think about it before thanking him. 77 Ms Taylor estimated that the value of the ring was around $4,000 to $5,000 and that the cost price was around $1,500 to $2,000. In cross-examination, however, it was put to her that the materials were relatively inexpensive (about $390). Ms Taylor did not recall whether Mr Grew had told her that the emeralds were "old stock". She said she did not know whether the cost of the platinum would have been $180, the main emerald $90 and the small emeralds $30 each, as suggested, and she disagreed with the proposition that the diamonds would have cost $30 each. 78 Mr Grew was not invited to comment on much of Ms Taylor's evidence. Mr Grew said that he did not recall asking to be paid or receiving any offer of payment. Importantly, however, he agreed that the ring was a gift. 79 Otherwise, his evidence was broadly, though not entirely, consistent with what was foreshadowed by the cross-examination of Ms Taylor. He testified that the two diamonds and two smaller emeralds were worth around $30, that the larger emerald was worth around $100 and the platinum would cost around $180. He did not provide an estimate of the cost of labour or an indication of its retail value. Indeed, the same is true in relation to all the jewellery items in question. 80 When asked why he did not seek payment for the ring he said: The stone had been sitting in the safe for some time. It hadn't been used. I didn't really see it being used in the foreseeable future. It was of fairly little consequence to me and if it was an item that Ms Taylor in this instance or a member of staff wanted, from my point of view it's an item of the company which also advertises the company. It's beneficial for the company for them to be wearing it, and I would prefer that they asked me about these kind of items if it's something that they want because then I know that they're not stealing, and these sort of items are overall fairly inconsequential. 81 In cross-examination Ms Taylor accepted that in around June 2020 she asked Mr Grew to remake the ring in yellow gold. She did not recall whether Mr Grew said that he would take the old platinum metal in exchange for the yellow gold such that no payment was required. Mr Grew testified that he told her that they could remake the rings and then exchange the original metal in lieu of payment.

[15]

The peach sapphire and the diamond cluster necklace 97 In December 2018 Ms Taylor gave Mr Grew "a session with [her] healer" as a Christmas present. On 29 December 2018, presumably in response to an inquiry from Mr Grew about how she was feeling, Ms Taylor informed Mr Grew that she was feeling fine and that her "healer" told her she needed an orange stone like carnelian (a semiprecious stone) and she should make a necklace to wear for "protection". He replied: "Carnelians cool. What do you need protection from?". Ms Taylor answered that she had "an entity attached to [her] from [her] brother", who was suffering from depression, which the healer "cleared" but that the healer told her that her throat was her "creative self-expression" and it needed to be kept open and protected. Mr Grew responded: "Wow, ok well better [get] that sorted out pronto". In cross-examination she said that she shared this with Mr Grew because they "had developed a nice friendship, and [they] would often talk about what [they] did on the weekend". 98 Ms Taylor testified that, after returning from a gem and mineral fair overseas, Mr Grew "presented" her with a round peach sapphire. Ms Taylor recalled that he approached her and said: I found a stone for you overseas at the gem fair. I would really like you to make this up into a necklace. I know your healer told you [that] you needed an orange stone. 99 Ms Taylor testified that she was "quite shocked" that he had remembered their conversation and that he had "personally selected a stone" for her. She said that she did not want to "seem ungrateful because "he ha[d] gone out of his way to get it for [her]" so she thanked him. She testified that in comparison to carnelian, the stone she mentioned in their text message exchange on 29 December 2018, a sapphire is "much more desirable" and a "more expensive and hardwearing precious stone". 100 On 9 May 2019, Mr Grew sent her this text message: Hey also about your pendants, I dont want any money for them I want you to have them. I appreciate everything you do and maybe it just a small sign of that. I wanted to tell you but haven't had the chance. Enjoy your break, it sounds amazing[.] 101 She replied: Aww man, thank you so much! I had every intention to pay for them but that's really amazing of you, thank you[.] 102 Ms Taylor testified that she "felt a little awkward", "uncomfortable" and "overwhelmed at the same time" as "it was definitely starting to feel like special treatment" since they had "got into a weird cycle" and "a pattern of behaviour" of "crossing boundaries". She estimated that the sapphire would have cost "a couple of hundred dollars" and that, once made up, the necklace could have cost upwards of $2,500. 103 In cross-examination she accepted that, in her text, she was showing her appreciation, exhibited no reluctance in accepting the necklaces as gifts, and that she did not insist on paying. She also agreed that she did not return the necklaces at any stage. In re-examination she maintained that she felt "uncomfortable and a bit awkward". 104 Mr Grew confirmed in his evidence that he had bought the stone at a jewellery fair and that he "gifted" the necklace to Ms Taylor. He estimated the cost of the stone at between $100 and $200, with the chain costing around $60 and the gold holding the stones at about $90 to $100. He said that Ms Taylor had added other stones on each side but he was unable to recall the value of them. 105 He testified that he did not request payment for the stone because "Ms Taylor intended it for herself" and the stone was "part of a parcel of stones that [he] had purchased" and the value was "fairly inconsequential" from his point of view. He said that Ms Taylor had seen the stone and liked it. He was not asked why he did not request payment for the other components of the necklace. 106 In cross-examination Mr Grew accepted that Ms Taylor had not asked for a sapphire, that carnelian was "a much cheaper stone", and that she had not asked him to "get anything for free". He conceded that he "took it upon [himself] to … gift [it] to Ms Taylor". Despite this, he maintained that it was not inaccurate to say (as pleaded in para 9(f) of the defence) that the gift was unsolicited. He claimed that the sapphire was not unsolicited because she had specifically asked him to find one in a conversation they had before he attended the fair.

[16]

The jade bangle 107 On 2 July 2019 Ms Taylor received a jade bangle from Mr Grew. As I mentioned earlier, it is an agreed fact that this was a gift. 108 Ms Taylor gave the following account of the circumstances in which she received the gift. 109 Mr Grew came into their shared office, shut the door and told her that he had a jade bangle for her that he acquired at an overseas gem fair. He said to her, "jade is all about luck, you should look up the properties of it". She recalled that at the time she was "quite caught off guard". The gift was unexpected, especially since it was not something she would even like. Nonetheless, she thanked him because she did not want to seem rude or ungrateful. 110 At short time later, Mr Grew's ex-wife, Gabrielle, walked into the office, saw the bangle, and told her that Mr Grew had given her "that same bangle". Ms Taylor recalled feeling "extremely uncomfortable" and "extremely awkward". Ms Taylor spoke to Mr Grew about her conversation with Gabrielle and testified that he seemed surprised. While she could not remember exactly what he said, her impression was that he seemed "caught out". 111 In cross-examination, Ms Taylor was referred to a text she sent later that day to Mr Grew: Hey, thanks so much for my jade bracelet! It's very thoughtful. 112 She accepted that the unicorn emoji was her way of showing appreciation to Mr Grew for the gift. 113 When it was put to her that he never said that he got the bangle for her she did not agree. She said that she did not recall seeing a pouch with a jade bangle in it on Mr Grew's desk for five months, denied that she had told Mr Grew she was feeling down that day, and that he said "[h]ere you go. You can have this" when he gave her the bangle. She accepted that she did not attempt to refuse the bangle and did not return it at any point. 114 This was Mr Grew's account. 115 At an international gem fair in Hong Kong in February 2019 he purchased a number of stones from a supplier who he had worked with over the years. As this occurred around the time of Chinese New Year, the supplier's wife gave him the jade bangle and explained that it was to bring luck and offer protection. 116 On the day he gave the bangle to Ms Taylor, she had been telling him that she was "feeling exhausted" and had "low vibrational energy". He recalled the conversation he had in February 2019 and showed Ms Taylor the bangle, explaining that it was "meant to absorb all the negative energy". He recalled that she was grateful and he told her that she could have it. He testified that their later text conversation followed on from their conversation in which he told her to look into the properties of jade because "it sounded similar to what she was saying". 117 He testified that he had previously bought a lavender jade bangle for Gabrielle in around 2007, that he had not had a conversation with Ms Taylor about that gift, and that Ms Taylor did not tell him about a conversation she had with Gabrielle about hers. He maintained this position in cross-examination.

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$2000 cash 118 In early September 2019, in conversation with Mr Grew in the office, Ms Taylor expressed frustration about the fact that she attended several auctions and "it seemed as though [she] needed to save about $25,000 more to be in with a chance for the type of apartment [she] would like to buy". She said that Mr Grew replied in words to the following effect: "Yes, that's really difficult. I'd like to give you some money towards your savings for your first property". She said she declined, saying "No. That's not your problem". 119 In his evidence Mr Grew said he had had a conversation with Ms Taylor in which she showed him the types of apartments she could afford to buy and those she would like to buy but would require an increase in her deposit by $25,000. 120 After that conversation, in about the middle of the month, Mr Grew raised the subject again in a text message. Again, Ms Taylor pushed back. This is the contemporaneous exchange: MR GREW: I'll give you something towards that extra that you need MS TAYLOR: Woah. No way! You have so much going on as it is! MR GREW: I want to see you achieve your goal MS TAYLOR: I really appreciate that, but it's so not your problem! MR GREW: Take it as a sign of appreciation for who you are and everything you do[.] 121 The next day Mr Grew came into the office with an envelope containing $2,000. He insisted she take it. She said she could not accept it. He replied: "Consider it an early Christmas bonus". Ms Taylor testified that in response she thought she said something like: "If it's a Christmas bonus then okay, thank you". She said she was "a bit tired of saying no" and felt like she had to accept it as she did not want to seem rude or ungrateful. When asked about whether she had any concerns about her employment at Grew & Co at this time, she answered: I was definitely starting to feel anxious. I felt kind of trapped. I didn't know how to - well, really, what to do. I - he always presented it in a way where I couldn't say no or it would be quite rude to say no. So, yes, I felt like I was in a really difficult position, that I had to placate my boss to keep my job. 122 Mr Grew confirmed in his evidence that he gave her $2,000. He said "she was really grateful" and did not indicate any hesitation in accepting the money. He recalled encouraging her to do her best to achieve her goal. 123 In cross-examination Ms Taylor admitted that she did not return any of the money at any stage. She also accepted that there was nothing inherently improbable about Mr Grew wanting to reward her for doing a good job when she was, as she believed herself, doing a good job. 124 Later that year, Ms Taylor also received a Christmas bonus of $1,000. 125 Mr Grew gave evidence about giving cash to other employees, a subject I deal with below.

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The massage 126 Ms Taylor testified that, on 6 September 2019, following a conversation with Mr Grew about a colleague and at a time when she felt "quite stressed out at work", he "randomly" called to say he had booked a massage for her. He told her to take some cash from the envelope in his "workshop box". She thanked him. She said she felt "a bit shocked" because it seemed to come out of nowhere. Since he had already made the booking, she felt obliged to go. 127 Mr Grew then sent her a text message with the name of the masseuse, the address and phone numbers of the business, directions about how to find it, and a photograph of the entrance. Ms Taylor replied: "That's very thoughtful, thank you!!!" She took the money and attended the appointment. Later that day Ms Taylor sent Mr Grew a text message saying: "I fully look like I've had a massage hah" and "[s]he's was super cute! I needed that- thanks again!" 128 It was put to Ms Taylor in cross-examination that she had had a telephone conversation with Mr Grew in which she told him that she needed to leave work early because she was getting "neck and jaw tightening" as a result of "a situation regarding a colleague" that had arisen at work. She accepted that her text message reply reflected that she was grateful for the massage. But she explained that when she wrote that she "needed" the massage, she did not mean that "he had to provide it for [her]". In re-examination, she said that she felt "a bit weirded out and uncomfortable", despite what she had said in the text message. 129 If Mr Grew's evidence is to be accepted, his call was not, or at least not entirely, "random". On his account, earlier that day Ms Taylor had been "venting" about "the frustration that she was feeling from [a] colleague", and that she told him it had caused her neck and jaw pain. He said she mentioned that she might leave work early. He said that put him in a difficult position because he was moving house and could not lock up the store himself. In the hope that it might alleviate her symptoms, he said he booked her in for a half hour massage (as he recalled it) at a place only a block away from the store and told her to take the money out of petty cash. 130 It is common ground that at no time did Ms Taylor communicate to Mr Grew that she felt any embarrassment or discomfort by him paying for a massage. 131 Mr Grew's unchallenged evidence was that he had suggested to another employee that she see a chiropractor during business hours because she could not move her neck and paid for the consultation after she told him she was unable to afford it. He paid for three-month gym memberships for Mr Tanaka and Mr Snow who were experiencing "difficult" times and he believed it would be good for both of them to "have an outlet". And during the COVID-19 lockdown he paid for four visits to a psychologist for Ms Nicholson-Black, who was in Melbourne away from work and feeling "quite isolated". 132 While he accepted that a massage could be "a personal thing", Mr Grew rejected the suggestion put to him in cross-examination that the massage was "simply [his] way of showing his affection towards Ms Taylor".

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The Gemini stud earrings 133 The Gemini stud earrings were a stock item which Grew & Co sold to customers. They were earrings consisting of two small diamonds positioned side by side. Mr Grew estimated their "cost value" at around $200. 134 Ms Taylor testified that in or around November 2019 she and Ms Vu would chat about how they quite liked "these new earrings that had come into stock" and that "Mr Grew knew this". One day he presented them with a pair each and said something like, "here's a pair of Gemini studs for each of you". She testified that she was "shocked" as it was "out of the blue" and thanked him because Ms Vu was there. 135 Ms Taylor testified that she had a conversation with Mr Grew later that day in which she asked him how much the earrings cost. She recalled that he replied: "I don't want any payment for them". Again she felt "shocked". To avoid appearing ungrateful, she thanked him. 136 Later, Ms Vu asked Ms Taylor whether Mr Grew had asked her to pay for the earrings. She recalled that Ms Vu told her that he requested "around $200 cash for [hers]". She testified that she felt "extremely awkward" because Ms Vu "seemed quite frustrated" or "even jealous" and it was "clear" that Ms Taylor was receiving special treatment. In cross-examination she accepted that after this conversation she knew the cost price for the earrings and did not attempt to pay Mr Grew for the earrings or return them. 137 In cross-examination Ms Taylor's attention was drawn to a text message she sent to Mr Grew on 20 November 2019 in which she wrote: "ThAaaaank you for the studs!!!" followed by a unicorn emoji. She accepted that this was an indication of her "appreciation and gratitude" at the time. 138 In her evidence in chief Ms Vu denied that she was there when Mr Grew presented Ms Taylor with her earrings. She said she became aware of the gift when she saw Ms Taylor wearing them. She decided she wanted a pair too so asked Ms Taylor how much she paid for hers. Ms Taylor told her that she did not pay for them; Mr Grew gave them to her. Ms Vu said she placed an order for a rose gold pair and paid Mr Grew $280 for them. She was not cross-examined on this evidence. 139 On 28 November 2019 Mr Grew sent Ms Taylor a text in which he wrote: Hey I didn't get to see your Gemini earrings on. Can you wear them tmw? Unless your planning on wearing something else that is[.] 140 Ms Taylor replied:: Haha sure! I love them thank you!! 141 Ms Taylor denied that this conversation occurred because she had asked to pick another pair of earrings since her pair was mismatched. 142 Mr Grew's account was as follows. 143 Ms Taylor tried on a pair of the Gemini stud earrings. She told him she loved them and that she really wanted a pair of diamond earrings. Not long afterwards, he was working on several pairs of the earrings in a mixture of coloured golds. When he finished them, he offered a white gold pair to Ms Taylor and told her that, if she wanted them, she could have them. He said he gave Ms Vu a rose gold pair at the same time ("she wanted a rose gold pair"). He added that he offered to give them to her but she insisted on paying. When asked in chief why he did not request payment from Ms Taylor he replied: [I]t's not a huge issue for me. From my personal point of view I think that - from an employment point of view I get better results from people by being good to them and if staff or Ms Taylor or anybody else wants to wear an item that we make, more often than not the value is fairly insignificant in the overall scheme. So I'm happy for them to have it. 144 In cross-examination, after initially maintaining that the earrings were solicited because "she told [him] that she wanted a pair", Mr Grew accepted that he approached Ms Taylor with the Gemini stud earrings and "gave them to her as a gift"; that she did not ask him to give them to her; that he volunteered them; and that his conduct in making and offering of the earrings to Ms Taylor was unsolicited.

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Michael Kors bomber jacket 148 Mr Grew purchased this gift in early December 2019. 149 December 2019, it will be recalled, was the time Mr Grew said he first realised he had developed feelings for Ms Taylor. The parcel containing the jacket arrived in the store on 6 December. 150 Mr Grew said that he paid $296.65 for the jacket and produced a receipt to support his evidence. While the receipt appears to indicate that the price was in fact $380.93 for the jacket alone (that is, excluding shipping), nothing was made of the apparent discrepancy. 151 Ms Taylor testified that when the package arrived she "felt a bit anxious". She sent a text message to Mr Grew saying "Ps, can I take the box home" and later "how can I not be curious". She accepted, in cross-examination, that this reflected that she was excited to open the present. 152 On 10 December 2019 he gave her the gift. She told him that she would prefer to take it home to open it. Ms Taylor testified that "it felt really personal" for him to have bought her clothing and that he had "obviously … assessed [her] body in some way and purchased an item for it". She felt like they "had crossed a boundary at this point" and this made her feel "really uncomfortable". 153 Her evidence was supported by a series of text messages she sent to a friend (Leanne) that evening: 154 Similarly, in a text to her sister, Sonia, she wrote of the jacket: No, this is where it gets weird. Simon got it for me for xmas… And I didn't know if I should keep it or not It's Michael kors[.] 155 In her reply Sonia agreed it was weird. Ms Taylor also texted her saying: Buying clothing is super person so o was slightly weirded out about it but being a bomber jacket I was like wel he just knows me well kinda thing. Don't wanna look into it too much. Plus I think he did it Cos I mentioned getting him something but mai and I bought his a joint gift which is a backpack… 156 Ms Taylor explained that "it was an uncomfortable thing to look deeper into because [she] had to continue to work with Mr Grew in close quarters" and that "it was easier to kind of try to ignore the meaning behind it". 157 Later that evening, she sent a text message to Mr Grew that said "[s]o, I love it" and "[t]hank you so much! Very cool". In cross-examination, she accepted that this message indicated that she had considered her options and had decided to keep the gift. She said that she sent this message because she did not want to "acknowledge it at the office" and did not "want to seem ungrateful". When it was put to her that this message was unprompted, unsolicited and that she reached out to Mr Grew, she maintained that she sent him this message because she was "worried" about appearing rude or offending him. 158 The next day Mr Grew closed the door of their shared office and asked her to try the jacket on in front of him. When "he saw that it was a bit fitted" he "suggested that we go up a size". She then "awkwardly said yes". 159 Mr Grew testified that the day after she took the jacket home, Ms Taylor told him that she loved it but thought it was too small, put the jacket on and asked for his opinion, and then asked him to exchange it for another size. He denied asking Ms Taylor to try the jacket on for him and denied closing the door to their office during this conversation. He said that Ms Taylor did not indicate any discomfort or embarrassment by the receipt of this gift. 160 In cross-examination he denied that in late 2018 he had a conversation with Ms Taylor about buying a bomber jacket for his wife. Mr Grew testified that Ms Taylor had mentioned in October 2019 that she wanted to get a sequinned bomber jacket (a proposition Ms Taylor denied in cross-examination) and that he bought it for her after she told him that she had bought him a Christmas present.

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The gold signet ring 164 Ms Taylor testified that in March 2020, following Mr Grew's confession of feelings and their trip to the USA (which I will come to), he approached her at work and presented her with the gold signet ring, based on the silver signet ring he had previously given her and in the same size, and asked her to try it on. She said he also told her he would "really like [her] to get something engraved on the face of the ring", although Mr Grew denied this. According to a letter from the respondents' lawyers relied upon in the victimisation case, the recommended retail price for this ring is $1,900. 165 Mr Grew denied ever "gifting" the gold signet ring to Ms Taylor. In response to her claim, he testified: [F]rom that point, we made the similar version signet rings for men and women. They're now currently featured on our website. And Ms Taylor would wear one of the gold ones from time to time, and it's a - you know, it's a fairly regular practice that staff members can take something from stock and - and wear it, and wear it that day or sometimes they might wear it, you know, semi-regularly. And it's - it's better for them to be - if a client comes in, it's better for them to be wearing an item of our jewellery rather than someone else's. So I'm happy for them to do that. 166 This evidence is at odds with the contemporaneous text messages. 167 On 4 March 2020 Ms Taylor sent Mr Grew a text message in the following terms: "Thank you so much for the signet, I really love it!" Mr Grew replied: "No problem. I feel like it needs something on it tho". Although he admitted that he had started to develop the gold signet ring series in early 2020, Mr Grew claimed that his response related to the silver signet ring. Mr Grew admitted the messages were sent in March 2020, which was three or four months after he had given her the silver signet ring. In these circumstances I consider it to be highly unlikely that Ms Taylor's message related to the silver signet ring and more likely than not it related to the gold signet ring.

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Stuller gold earrings 168 Stuller is a business based in the US which supplied jewellery to Grew & Co. 169 Ms Taylor testified that one day in March 2020, when they were both in the office, Mr Grew presented her with a pair of gold hoop earrings supplied by Stuller in the following context: [I]t was pretty normal to talk about jewellery in the office and things that we liked, and I had mentioned that I was looking for a pair of hoop earrings in a particular thickness. And Mr Grew purchased a pair and presented them to me out of the blue one day, when he had - he was unpacking a Stuller order. 170 Mr Grew said to her: "Hey, I got you those hoop earrings". She replied: "Oh, you didn't have to do that. How much were they?" He told her not to worry about payment. 171 Later Ms Taylor sent a text message to Mr Grew saying "I hope those hoops weren't too expensive!" to which he replied "[n]ah they weren't". She then responded: "Haha ok, well, thank you!". He wrote back: "You're welcome:) Is the size ok?" She replied: "The size is perfect I should've checked stuller all along!" 172 Nonetheless, Ms Taylor testified that his purchase "came as a shock" and made her feel "a bit awkward and uncomfortable". In cross-examination she said she accepted the gift because "he wouldn't let [her] pay and [she] hoped he hadn't spent too much money on [her]". She acknowledged that she did not offer to pay in the text message exchange or in a verbal conversation afterwards but maintained that she offered to pay before the texts when he handed her the earrings. She admitted that she had not offered to return the earrings. 173 Mr Grew's evidence was that he was prompted to purchase the earrings for Ms Taylor by a text message she sent him on 29 December 2019. On that day, Ms Taylor wrote: "Hey, do you think these are a good price $300usd for 14ct white gold hoops?". She attached a link to an American jeweller's website. Mr Grew replied to the text: "For you? We coukd probably get them cheaper if they are". Ms Taylor confirmed they were for her but said: "I don't need 14ct white gold, silver or 9ct is fine but I just wondered if it'd be cheaper or not! But I'm searching for the right thickness which seems to be 2mm". Mr Grew then texted: "It should've too hard to find otherwise we can make them". 174 Mr Grew testified that he did not seek payment because the earrings were of "very little value", at around $60. He said that at no time did Ms Taylor indicate any discomfort or embarrassment about receiving any of the gifts, "only gratitude". He noted that Ms Taylor chose the hoops and selected the size she wanted.

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Gift giving at Grew & Co 175 Ms Taylor was cross-examined about a "culture" of generosity in the business and about gifts she gave Mr Grew. 176 Ms Taylor accepted that she was able to, and did, purchase items for friends at cost price while working at Grew & Co and that this was "something he offered to all staff members". She also accepted that it was a benefit that staff could obtain jewellery or other items sold in-store at a "reduced wholesale cost" but denied it was a benefit of her employment. In addition, she accepted that another "perk" of working in the jewellery industry was that from time to time she could wear stock items while at work. 177 In cross-examination, Ms Taylor was asked about gifts she had purchased for Mr Grew. Apart from the group gift for his birthday in 2018, there were three. The first was for Christmas 2018, when she presented him with a session with her healer. The second was for his birthday in November 2019 when she gave him a turquoise inlaid pocketknife after first checking with him that he liked turquoise. The third was for Christmas 2019, when she and Ms Vu presented him with a backpack, which Ms Taylor had sourced, sharing the cost equally with Ms Vu. 178 Mr Grew testified that he gave jewellery to three other members of staff. They were: (1) a titanium signet ring inlaid with gold and earrings to Mr Snow for his wife, for which he received no payment; (2) a diamond pendant necklace with a gold chain, which was made for Ms Nicholson-Black and which she insisted on paying for but for which she paid below the cost price, and a gold diamond ring as a "going-away present" when she left Grew & Co; (3) matching pendants for Ms Vu as well as her sister and her mother, which he had offered as a gift but for which she insisted on paying and for which he charged cost price; a pair of rose gold "Gemini" stud earrings, for which she also insisted on paying but for which she paid cost price; and not charging Ms Vu for remaking her mother's engagement ring and setting diamonds into it. 179 Mr Grew also testified that he had given cash, not only to Ms Taylor, but to other employees as well. He said that on several occasions he had "gifted" Mr Tanaka money to assist with the care of his son, who has cerebral palsy, or the purchase of items he needed, such as new walking frames or bicycles. He also said that he had given Mr Tanaka various amounts of money between $1,000 and $2,000 on multiple occasions as donations to charities supported by Mr Tanaka or for which his son's school was raising funds. 180 Mr Snow testified that the titanium signet ring was a 40th birthday gift from Mr Grew and Mr Tanaka. He said the materials were not very expensive but the gold inlay was 24-carat and the ring was both unique and "ludicrously hard to make". He estimated the retail price at between $3,500 and $5,000. He said that the earrings he gave to his wife for Christmas 2019 consisted of three small diamonds on each earring. He said that the cost value would have been "relatively low" and estimated that it was "around the 150, $200 mark", and that the retail price was around $990. He testified to receiving cash bonuses throughout the time he worked for Grew & Co and in the period during which Ms Taylor worked there the bonus was "around $3,000 to $5,000". In addition, towards the end of his employment Mr Grew gave him a $5,000 cash bonus to help towards the purchase of a "family car". 181 Mr Tanaka testified that during the period in which Ms Taylor worked for the business Mr Grew gave him a Bunnings gift card (that he recalled being worth about $200), a Garmin watch, and a massage coupon, and that he had paid for a CrossFit gym membership for him and Mr Snow. He made no mention of receiving cash for the benefit of his son or for charities associated with his son's disability. Nevertheless, Mr Grew was not challenged on his evidence on these matters and in those circumstances I accept it. 182 Ms Nicholson-Black testified that she received a ring set with diamonds at around the end of 2019 when she was leaving to go travelling. She also said she had received a Christmas bonus in 2020 and 2021 but did not specify the amount. She said nothing about any diamond pendant necklace or anything else for that matter until in cross-examination when she was asked whether she had ever received a gift from Mr Grew "simply out of the blue", specifically, other pieces of jewellery, and said that she had received one or two pieces "in recognition of her work". 183 Ms Vu confirmed Mr Grew's evidence about the jewellery. In the case of the rose gold "Gemini" stud earrings, she said she paid Mr Grew $280. She also volunteered that he remade, at her request, two wedding bands and an engagement ring for her mother. Like the other employees, she testified to receiving cash bonuses. She said she received a cash bonus of $500 at Christmas 2019 and another of $4,000 when she was working on her own "in the middle of lockdown" in order "to keep the business running for [Mr Grew]". 184 Nonetheless, Mr Grew conceded that the number of gifts he gave Ms Taylor far exceeded the number he had given other employees. He attributed this to fewer requests from other employees for items to be made.

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"Beautiful body" comment 187 Sometime between October and December 2019 Ms Taylor recalled having a discussion with Mr Grew about exercise. She recounted that: Mr Grew would attend CrossFit on a regular basis. And he would always ask me to come along with him. And I think he said something like "Hello, you should come to CrossFit with me". And I would say, "No. I'm not interested in CrossFit. It's not something I want to do. I don't like high intensity activity". And he told me I had a - a beautiful body and shouldn't worry. 188 She testified that this comment made her feel "uncomfortable". She noted that, in terms of her interactions with Mr Grew at this time, the special treatment and the compliments "had started to escalate". She said that it was "a really difficult thing to try and manage [her] feelings at work around what was going on because clearly none of [her] co-workers were receiving the same kind of treatment". 189 In cross-examination Ms Taylor said that, while Mr Grew spoke to her about fitness, she spoke to Mr Grew "more so [about] health than fitness" but accepted that they shared the "health regimes" they were undertaking. She denied that the beautiful body comment was made on her return from a short trip to Bali in early March 2020 in response to a comment she made to Mr Grew that she "still had some weight to lose". 190 Mr Grew admitted that he told Ms Taylor she had a beautiful body but claimed that he did so in early March 2020. He testified that this was the context in which the comment was made. He said that, when she told him she had been doing a detox diet but "still had some weight to lose", he replied: "Are you crazy? You have a beautiful body". He said he made the comment in an attempt to reassure her about "her physical insecurities". 191 Mr Grew also sought to contextualise the comment by reference to remarks he claimed Ms Taylor had made about his physique. 192 Mr Grew testified that in November 2019 Ms Taylor told him that he "was looking really fit" and that he replied saying that he was "feeling fit and feeling great". In around December 2019 or January 2020 he recalled that Ms Taylor said that he "must have no body fat" and "must be burning fat right now". In early 2020 he said that Ms Taylor told him that his "arms looked really buff". While he gave no evidence about it in chief, it was put to him in cross-examination that Ms Taylor had never told him he had a strong back to which he replied: "Yes, she has". 193 Ms Taylor was cross-examined about these matters. She could not recall whether she mentioned to Mr Grew in November 2019 that he was looking really fit but accepted it was possible. On the other hand, she emphatically denied making the other remarks.

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"You are perfect" comment 199 On 2 December 2019, Mr Grew sent Ms Taylor three text messages which she testified made her feel "a bit uncomfortable". She responded to the second only. This was the exchange: 200 It was common ground that the emoji was shorthand for 100% and that was how Ms Taylor understood it at the time. 201 In cross-examination it was put to Ms Taylor that earlier in the day she had had a conversation with Mr Grew in which she discussed a number of matters, including that she was on a diet, that she was insecure about gaining weight, about her knees or "knee issues", and about feeling self-conscious. Ms Taylor said she did not recall any such conversation. She denied telling Mr Grew that she was insecure about gaining weight and about her "knee issues". She said that was not true. She accepted that she was "a little bit self-conscious" but did not recall telling Mr Grew that or that she had "an intense fear of abandonment". She said that her comment about the "P word" (perfect) was an "isolated" and "general" comment and was not related to the conversation they had had earlier that day. 202 She accepted that in her reply messages she was expressing "gratitude and appreciation" for Mr Grew's kindness and respect. She did not agree that this was because that was what she understood Mr Grew's original message to be. In re-examination she said her reply was inconsistent with the way she felt at the time, which was "uncomfortable". She explained that she replied as she had in order to avoid appearing "rude or impolite" and she was worried about causing "damage" to their friendship. 203 When asked in examination in chief to contextualise the second message (the "100% perfect" message), Mr Grew responded: Ms Taylor - she seemed to be quite - feeling quite, kind of, down that day, and we had a lengthy conversation about a lot of the things that she was concerned about. She was on a detox diet and she had told me about how her mother had difficulty getting up the stairs at their place, and for a number of reasons, she told me that her sister had - had lost a - quite a lot of weight also on a detox diet in Bali. Ms Taylor mentioned that she - she had concerns about putting on weight, and she mentioned her - her legs that she had some insecurities about, and that she had an intense fear of abandonment. And she - she just seemed to be really lacking in confidence on that day. And I offered those texts as - as a way to reassure her and pick her up. Make her feel better. 204 Similarly, he claimed that the third text ("even your 'flaws' are perfect") was an offer of reassurance. He testified that he had sent "reassuring texts" to several other employees. 205 Mr Grew rejected the proposition put to him in cross-examination, that, having regard to his position of power over Ms Taylor and the absence of an "HR person" or middle manager, there was no conversation that he could have had with her which would justify sending the second and third texts. He also rejected the proposition that he sent the texts because he was looking to have a romantic relationship with Ms Taylor. Nonetheless, he conceded that by this stage he had developed feelings for her.

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The slap 209 In her amended statement of claim, Ms Taylor pleaded that on 23 July 2019 Mr Grew was standing in the doorway to the office and workshop and, as she walked through the doorway, Mr Grew slapped her buttocks, causing her to feel embarrassed and uneasy but she tried to laugh it off because he was her boss. 210 Ms Taylor's evidence in chief was as follows. 211 On 23 July 2019 she was walking from her office through the doorway into the jewellery workshop. Mr Grew was behind her. As she was walking through, he was following. She turned her head to the side and saw him "do a kind of, like, cricket bowl thing". As his hand came up, he "slapped" her. She indicated that he raised his right arm, extended it out as his arm went over his shoulder in a full circle underarm action with a cupped hand, and slapped her on her lower right buttock. Mr Grew was walking behind her, slightly to the right, approximately an arm's length away, at a slower pace. He immediately apologised, saying something like "God, sorry". 212 She felt "extremely uncomfortable", laughed "out of shock", and found the incident "pretty overwhelming". She said it seemed "quite outrageous" that Mr Grew would touch her body. When asked why she did not complain about it, she replied that as Grew & Co do not have "HR", she would have had to complain about it to Mr Grew himself and she did not want to do that because she was scared that she would lose her job. 213 In cross-examination she said she saw "like, half of his body" as she turned her head to the right. It was put to her that, if Mr Grew was, as she said, walking at a slower pace than she was, at arm's length away to her right, then he could not have struck her on the buttock. She rejected the proposition. She added that where she was walking "there's a piece of machinery where you take a natural pause when you're walking and that's when it happened". 214 Mr Grew gave an altogether different account. He claimed that Ms Taylor's account was "fabricated". 215 In his evidence in chief Mr Grew said that on the day in question the back of his hand brushed the fabric of her dress: I was in the - the office/kitchen, and I was doing something on the kitchen bench, and Fiona called out to my attention, and she asked me if I had finished a job in the workshop. It was a task that had to be done on a client's order. And she walked up towards me and I was standing at the kitchen bench, and turned… … So she got my attention asking about a job, if it - if I had done it, and - and I turned and I said, "No, I haven't gotten to it yet". And she rolled her eyes and spun around and she was wearing a - a long flowy dress, and when she spun around and rolled her eyes, I said - I turned my hand over and said, "What are you rolling your eyes at me for?" And as she turned to walk away, and the fabric came around. It caught the - or just brushed the back of my hand. When I saw that I said, "Shit, sorry". And that was it. 216 When asked how he was able to recall the particular date, he said it was because he immediately apologised and apologised again the next morning on the way to an "important jewellery shoot". 217 In cross-examination Mr Grew said that his hand was down by his side in line with his hips when the dress "kind of expanded"; "[i]t just blew up". He claimed that the back of his hand touched her dress accidentally. It was put to him that, on his version of events, he had nothing to apologise for. Mr Grew did not answer the question directly. He replied: I've never - I - I, certainly, didn't want to seem like there was anything inappropriate, and I - I've never touched any employee's person. 218 The statement that he had never touched any employee's person cannot be accepted at face value, given his admission that he had touched Ms Taylor's fingertips when inspecting rings on her fingers. Presumably, he meant that he had never touched an employee inappropriately.

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The declaration of feelings in early January 2020 219 In her amended statement of claim Ms Taylor pleaded that during a conversation on a Monday in early January 2020 Mr Grew made certain unsolicited and unwelcome comments to her, that she was shocked by Mr Grew's advance, and sought to reject it. The contemporaneous evidence establishes that the conversation took place on 6 January 2020. 220 Ms Taylor's testimony was as follows. 221 At around 5.30 pm, as she was leaving work for the day, Mr Grew asked her whether she would "mind just hanging back for a second" as he had something he would like to talk to her about. She readily agreed. They both sat down and he then said to her: I've developed feelings for you. I can't hold it inside any longer. It's something I wanted to share with you. I think you're the most beautiful woman I've ever seen. We get along so well, we like the same things. My - my children don't need a mother, they need a friend. We can run the business together or if you want to start your own business, that's something I can help you with. 222 While it was not an agreed fact, I took it to be common ground that this was a declaration of "romantic feelings". It is described as such in a letter from Mr Grew's lawyers annexed to the statement of agreed facts. 223 Ms Taylor said she was "really overwhelmed at that point" because it appeared as though Mr Grew was "project[ing] this future" on her, although he was aware that she was in a relationship at the time. 224 She replied: I like you as a person and I respect you as my boss, but I don't feel the same way. I - I'm in a relationship, as you know. 225 The conversation was a long one but these were the parts she remembered the most. When asked by her counsel whether there was anything else in the conversation that stood out to her, she replied: I mean, yes, he said he - he couldn't find anybody else that had the same qualities as me, and that he - yes, sorry, that's all I can. 226 Ms Taylor was "extremely overwhelmed" and uncomfortable. She suffered from anxiety "every day" thereafter. She said she started having problems sleeping, tossing and turning at night. She experienced fatigue after a poor night's sleep. She started overthinking things and began to suffer a lot of joint pain. She was clenching her jaw. And she would experience "a fluttery heart" on occasion if she got really anxious thinking about it. Sometimes she would forget things. She became "highly sensitive". 227 On her way home from work Ms Taylor noticed messages on her phone indicating that her boyfriend (Brohn) had been trying to reach her during the conversation. She then telephoned her sister, Sonia. When asked in her evidence in chief to recall the conversation, Ms Taylor replied: I said Simon just had a conversation with me and he told me that he had feelings for me. I feel really weird about it. Brohn has called me so many times. I think I said something like, "I - I don't have feelings for Simon," and my sister said something like, "Whoa, that's so inappropriate." 228 When she saw Mr Grew at work the next day she felt anxious. 229 None of Ms Taylor's evidence about how she felt following Mr Grew's disclosure was challenged. 230 In her evidence in chief Ms Taylor said that on her return to work on 7 January 2020 felt she could not tell anyone about what had happened so tried to act as if nothing had happened. It was put to Ms Taylor in cross-examination, however, that she told Ms Vu that day that Mr Grew told her the night before that he had feelings for her. When reminded of that conversation, Ms Taylor accepted that she had mentioned it to Ms Vu who pressed her for more details. It was suggested to her that she told Ms Vu words to the effect that "I like him but I have a boyfriend, so I can't promise anything now. Maybe in six months or 12 months. I need time to process it". Ms Taylor did not agree. She adhered to the account she had given in her evidence in chief. 231 Mr Grew admitted to declaring his feelings for Ms Taylor at this point but his account of the conversation was different. As he put it: I told Ms Taylor that I greatly value the friendship that we had at that point and also importantly the working relationship that we enjoyed, and I told her that I have noticed lately that I have started to develop some deeper feelings and that I'm just not sure if they're reciprocated, and that I didn't want to compromise either our friendship which I valued or our working relationship, but I just felt it best to be honest about it. And Ms Taylor responded by saying that she was nearing the end of her relationship, that she felt that she had a pretty good idea that I might have had some feelings for her, and that she needed to do some work on herself and that would take some time, and she said that she also appreciated the friendship that we had and valued me professionally and as a person, and she said that she needed to sit with it for a while, that she couldn't give me a response at that time. 232 Ms Vu gave evidence about the conversation with Ms Taylor the following day. Her account was that: Ms Taylor said [words to the effect of]: "Mai - Simon has sat me down and told me after work that he had feelings for me." My response was to the words of the following effect and the best of my knowledge was, "Wow. That's big. How did you take that?" And Ms Taylor, to the words of the following effect and the best of my memory, was, "I am shocked. It was quite unexpected." And my answer to that was, "How do you feel about it? Is that something that you would consider?" And Ms Taylor said, "Well, I'm still with Brohn, so I can't do anything about it right now, so I have asked Simon to give me time to process and think about it. 233 Although Ms Taylor was not cross-examined about her evidence concerning her reaction to Mr Grew's declaration of his feelings for her, when he was cross-examined Mr Grew was reluctant to acknowledge that it had caused her any anxiety. I have no doubt it did. 234 On 27 January 2020, three weeks after the conversation and a few days before they were due to travel together to the United States, she discussed her anxiety with a friend and her sister. Text messages exchanged between Ms Taylor and Sonia attest to that. It is apparent that she felt vulnerable at the time because she was going through a painful breakup with her boyfriend, Brohn. The same day Ms Taylor sent the following text to Mr Grew: Simon - I just needed to express something before we go away next week. I am going through a pretty painful breakup currently, and I need you to know it's something I had been wrestling with for a long time and didn't have anything to do with what you told me the other week. If I'm honest, I'm feeling anxious about our trip next week, and I know you would be professional, but regardless I have to put down some boundaries so we are both clear and on the same page. I'd like to keep things work-related between us, and don't want to worry while we're away. If anything right now, I need a friend. And less things to stress about so I can focus on myself during this difficult period. I know you understand, but I just had to say it for my own peace of mind. If you wanted to get a coffee and chat about it tomorrow just let me know. (Emphasis added.) 235 Ms Taylor also told Ms Vu in a text that she was feeling anxious about the trip. It is clear from that text what she was anxious about. She said: Like, I feel like I need to say something like how I'm pretty sad at the moment and just wanna focus on work. I don't want him to be secretly happy or think this means it's fair game to try something[.] (Emphasis added.) 236 In response to Ms Taylor's text Mr Grew texted: I totally understand. I know it had nothing to do with what I said and it was something that was happening regardless. I also know that it's really tough ending a relationship and reconnecting with yourself is the most important thing right now. I thought it best that I give you space right now and I hope since telling you what I did I haven't behaved any different towards you and your opinion of me hasnt lessened or changed. The US will be an amazing experience for both of us and I'm really happy that you're coming. I don't want you feel anxious and I would never do anything to make you feel uncomfortable I intended to give you space while we're there too. I don't know if saying what I did to you was the right or wrong thing to do but I'm very respectful of boundaries and I don't have any intention of compromising them and consequently our working relationship. Most importantly is that I value our friendship and I don't want to compromise that if I haven't already. As a friend I'll be there for you to do anything I can, unconditionally. Let's get a coffee tmw. I think talking about it in person before we go would be a good thing[.] 237 In cross-examination, Mr Grew maintained that there was no inconsistency between his recollection of their conversation and Ms Taylor's text. 238 In cross-examination, Ms Taylor accepted that the response from Mr Grew was "very respectful".

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The purchase of the Mociun ring 246 While in NYC they visited the Mociun store together. Ms Taylor testified that Mr Grew "had [her] try on a few rings" as he knew that she "had loved many of their rings for years". She asked him to take some photos of the rings on her so she could show her sister. 247 Over lunch that day Mr Grew said "I would really like to buy you a ring. But I don't know if it would be inappropriate", and that she replied: "Yes. It would be inappropriate". Later that evening or early the next day they corresponded by text about which rings Ms Taylor liked at the Mociun store. The following exchange of texts then occurred: MR GREW: TBH [to be honest] I've been seriously thinking about getting it because I know how much you love mociun and would like you to have something nice that you would love. But I'm torn because I don't want to make you feel uncomfortable. Just not sure if it's out of line. MS TAYLOR: Yeah I was thinking about you offering that. And was really touched by it. I've loved that ring for years but I'd really hate to take advantage of your kindness, I mean, I'm not that kind of person anyway. But I wouldn't want it to be a conditional purchase. I wouldn't be uncomfortable but it's a lot of money, so I think that would be your own decision, I can't tell you what to do. MR GREW: Of course it wouldn't be conditional. That's not me (Emphasis added.) 248 Ms Taylor testified that she felt "quite awkward and uncomfortable" about his offer to buy the ring for her, especially since she was "under his care" while overseas. She clarified that "it's not like [she] could go to a friend's place" or "seek out" any friends. In cross-examination she acknowledged, however, that she had friends in NYC, that she could have sought them out, and that she did meet up with them, although she noted that it was just "a quick catch-up". Ms Taylor also acknowledged in cross-examination that in her text message she was communicating to Mr Grew that she was not uncomfortable with him purchasing the ring "at the time". 249 Ms Taylor testified that they had the following conversation on the way to breakfast the next day: I said, "I have been thinking more about this. And I really don't want you to buy me the ring". And he said, "Really? I really want to buy you the ring". And I said, "You can't buy me the ring. I don't want you to buy me the ring". And we went back and forth a couple of times. And then we went and had breakfast and walked back to the Mociun store. And when we walked in, he asked the saleswoman to get the ring out. And he said that he would take it. 250 She said that this made her feel "really uncomfortable" since he "disregarded" what she had said and "just did what he wanted to do anyway". 251 Mr Grew testified that he sent the text message offering to buy the ring because he "could see how much she really liked it". He said that he did not want to make her feel uncomfortable, was not planning on purchasing it and "only mentioned it because she sent [him] the photo of it". He said that after this exchange Ms Taylor did not indicate that she did not want him to purchase the ring and in fact "encouraged [him] to go back to the store". He maintained that Ms Taylor never indicated any discomfort or embarrassment. 252 In relation to the care guide and cloth for the ring, Ms Taylor agreed that after initially taking them back to her home, she brought the care guide into the store and left it there.

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The 1 June 2020 remarks 255 On 1 June 2020, about five months after he first declared his feelings for Ms Taylor, which she told him were not reciprocated, Mr Grew revived the subject. 256 That evening Mr Grew drove Ms Taylor home from work. On her account, when they arrived at her house, he parked the car and said: "Hey, can I ask you something?". She said: "Yes". He then asked: "Are you and I going to become something or do I need to turn my feelings off?" Ms Taylor replied: "I'm really sorry. I don't have romantic feelings for you and you need to move on". During the course of the conversation, Mr Grew told her he would "fight a tiger" for her. 257 Mr Grew's remarks caused her "a mix of awkwardness and [discomfort]". She said she never thought she would have to reject her boss, especially after they had developed "a nice friendship". She said she derived no joy from it and felt "quite sad" and "overwhelmed". 258 Mr Grew's account of the conversation was as follows: [W]e were speaking about relationships and - just in general - and she mentioned that she had met - had met a man … And I mentioned that I had also started seeing someone, and - and I was worried as a - a - a single parent, and I had three kids - I was always concerned about how much - the impact that could be on a new potential partner. And I asked Fiona if I could ask her a question that related to the conversation we had in January and would that be okay, and she said, yes, that's fine. And I said, "When you said that you just wanted to keep things work related, was that because we work together or is it because I've got kids?" And she said, "I just don't see you in that way," and I think she might have said, "I - I - I don't want to hurt you." And then we had a - a conversation after that where I described that [I] completely understood her position and that the - the working relationship and the friendship that we both enjoyed was of paramount importance and sustaining that was a huge priority, especially from - from my point of view; you know, I - I never wanted to disrupt that and have any impact on that.. (Emphasis added.) 259 It was put to Ms Taylor in cross-examination that the conversation covered a number of areas, including other relationships. Ms Taylor said she did not recall that. She denied that Mr Grew told her during that conversation that he had just started a new relationship. She could not recall him mentioning to her that he had been "online dating", but she admitted that he had been dating before then. She denied telling Mr Grew that she had met a man (Chris) who was now her partner. She admitted that she started dating Chris in or about June 2020. She denied that Mr Grew told her he had some concerns about dating while he had three children and queried with her whether that would be a problem for people he was seeking to date. She also denied that Mr Grew asked her whether the reason she wanted to keep things work-related was because of their working relationship or because he was separated with children. She could not recall telling him that she valued their friendship and their working relationship. She admitted she may have told him she did not want to hurt him. 260 During the course of the cross-examination Ms Taylor broke down. There was nothing confected about this. My strong impression was that recalling and recounting the events was distressing for her. 261 Later that evening Ms Taylor received a text message from Mr Grew which reads as follows: Thanks for talking, I really appreciate it. By saying I'd fight a tiger I meant that I'd do anything to make you feel safe. More than anything now it's important to me that you feel safe at work and in your position within the business. I'd never do anything to compromise that. 262 She replied: Hey, sorry, I've been cooking! No worries, I feel better after chatting. Don't worry about the tiger comment, I knew what you meant. Thank you for saying that, I really appreciate it. 263 Ms Taylor had a rough night's sleep. She was feeling anxious, "like a nervousness in [her] stomach". 264 Ms Taylor testified that the following morning, while driving to work, she started crying uncontrollably so much so that she could not see in front of her and had to pull off the road. She said she was hyperventilating at this point. As she gave this evidence, she became visibly distressed as if she were reliving the occasion. After she composed herself she was asked why she pulled over. She answered that she thought she was having a panic attack. She explained that as she was driving to work she started thinking about the conversation with Mr Grew the previous evening and "[her] body started to react". Her heart was fluttering. She had trouble breathing. She was shaking. Her teeth were chattering "a bit". She could not regulate her breathing. She said she could not pretend to be okay at work that day after rejecting her boss. She said she tried to calm herself down. But it took her "a really long time … to slow the tears down". 265 At 8.44 am she received a text message from Mr Grew advising her he would be "in", which I take to mean at work, "closer to 10am". Ms Taylor sent the following reply: Hey. I don't think I can come in today. I've had to pull off in beecroft because I started crying. I think everything has just caught up with me and I don't think I can pretend to be fine at work today. I'm really sorry, I don't mean to be dramatic or anything. I can't really control it[.] You don't need to do anything. I just need a mental health day. I can do emails and stuff from home. 266 Mr Grew responded: Oh shit, Of course. Take whatever you need. I'm so sorry if I've contributed to how you're feeling[.] Also, if you feel that you need to take Thurs and Friday off I want you to know that I'm supportive of you doing whats best for you. (Emphasis added.) 267 Ms Taylor said she felt reassured by Mr Grew's response. 268 In cross-examination Ms Taylor rejected as inaccurate the proposition that the reference in her text to "everything" having "caught up" with her was not just a reference to her conversation with Mr Grew the previous night but also to other matters going on in her life with her family. 269 At 8.57 am Ms Taylor sent the following texts to her sister, Sonia: I was driving in to work and just started Uncontrollably crying. I've had to pull over in beecroft Simon dropped me home last night and brought up stuff and I had to tell him I don't see him in that way and that he needs to move on and close this off. Like we had a proper chat about it. I was fine and now this morning I can't keep it together[.] 270 There followed a lengthy exchange which it is unnecessary to recount. 271 The next day Ms Taylor saw her GP, Dr Eve Tsironis, who put her on a mental health plan and referred her to a psychologist for therapy "following the breakup of a relationship that lasted 3 years". Dr Tsironis's notes make no reference to the events of 1 or 2 June. Ms Taylor did not tell Dr Tsironis the real reason for the consultation. She explained that she understood that Dr Tsironis was also Dr Grew's "family doctor" and for that reason she did not wish to share with her the difficulties she was having with Mr Grew. She was concerned that Dr Tsironis would "relay" what she told her to Mr Grew. She added that she was also "stupidly worried" that Dr Tsironis might see Mr Grew differently. She did not think to see another doctor. She explained that Dr Tsironis was her only doctor at that time and she was not thinking straight. She said: "I was not really of sound mind". She explained that she had gone to see Dr Tsironis hoping to discuss the situation with Mr Grew but when she arrived at the surgery she became "extremely paranoid". It was put to Ms Taylor that she could have seen a different doctor in the same practice. She agreed but added "she was my doctor, and again, I was quite emotional when I went there". She did not accept it was "open" to her to return to her previous GP, with whom she had had a longstanding relationship, because she had moved her records to the new practice and did not "particularly want to" return to the old one. 272 On 5 June 2020 Mr Grew texted Ms Taylor, saying he was worried about her: Mr Grew: I'm ok. Been a little worried about some stuff tho Ms Taylor: … Worried about me stuff or other stuff? Mr Grew: … Worried about you stuff. Ms Taylor: Don't worry about me stuff. Im not going anywhere. It's just been a lot to deal with from being in a relationship when you told me, then ending things and trying to manage work with what you shared with me. I haven't had any breathing room to fully process it and this week off is a little break my body needs. I'll be good next week. Mr Grew: Ok that's a relief. If there is anything I can do I always will and if thats just space right now, just take what you need. I was worried that I'd be demonized for something I couldn't control. And the thought of the anxiety you felt from the fear of me doing that to you because of something you didn't feel really affected me. I just want to [move] forward positively. I don't want to lose what you bring to work and to everyone here. … Ms Taylor: While I can understand that you're feeling discomfort, using phrases like demonised and out of your control is how you feel but it's not the reality. You were in control because you could choose how you handled the situation. You took a big risk and there was always 50% chance that it wasn't going to work out and even though its uncomfortable now, it will pass. I'm not going to do or say anything about it but I do just want to focus on myself and move forward in a positive direction. See you on Tuesday. Mr Grew: I'm really sorry. I'm sorry to put it on you and I'm sorry to have effected you the way that I have by my feelings and actions. (Emphasis added.) 273 Ms Taylor testified she was upset and shocked reading Mr Grew's texts because she "felt like he was trying to act like a victim". She said she was experiencing "extreme fatigue and anxiety" at this time. She would "never sleep through the entire night". 274 Mr Grew was cross-examined on these texts. When it was put to him that the first remark emphasised above ("I was worried that I'd be demonized for something I couldn't control") was a reference to his feelings for Ms Taylor, he replied: "Back in January". He emphatically denied it had anything to do what he had said to her in the conversation on 1 June. When it was put to him that the second remark ("And the thought of the anxiety you felt from the fear of me doing that to you because of something you didn't feel really affected me") was a reference to the conversation they had on 1 June, Mr Grew equivocated: No. I can't be sure. I think that's more of a reference to January where she said that she was anxious about the - the upcoming trip. 275 In response to the cross-examiner's suggestion that the next statement ("I just want to move forward positively") was a statement of his desire to move forward positively from the conversation on 1 June, Mr Grew gave the following answer: Well, I think we've established that there was nothing there and there hadn't been anything there. And - you know, and when she said that there was no - she just didn't see me in that way, well, that is what it is. And it's still important that we do move - move forward positively. Going back to the - the demonised bit, you know, in December, I realised - I realised that I liked her. You know, and we had a good working relationship, and I was under the impression that those feelings, on some level - there was a good chance that they were reciprocated. And the way that it played out was that I was wrong. What I didn't want was Fiona to hate me because of that or for the business relationship or the friendship to suffer for that. 276 The cross-examiner pressed on: You say the context for the "demonized" words - the words saying: I don't want to be demonized - You say that's a reference back to the conversation you had on 6 January 2020?---Yes. All right. So for her to respond on 5 June saying: Using phrases like demonised and out of your control is how you feel but it's not the reality - still referring back to a conversation on 6 January 2020. That's a weird thing to say, isn't it?--- 277 Mr Grew claimed to have some difficulty understanding the question, objection was then taken, and the cross-examiner moved on: I think I've made my point, your Honour. Further down in Ms Taylor's text, she says: I'm not going to do or say anything about it but I do just want to focus on myself and move forward in a positive direction. Do you see that?---Yes. You must have understood that to be a reference to the conversation you had on 1 June. Correct?---No, I understood that to be a reference to the conversation in January. The conversation in January that she has sat on for six months and said: I'm not going to do or say anything about it - ?---I can't speak to her frame of mind. And then, you respond: I'm really sorry. I'm sorry to put it on you and I'm sorry to have effected you the way that I have by my feelings and actions. Do you see that?---Yes. You were apologising for what you did on 1 June. Correct?---No. You had already said sorry for January, hadn't you?---I can understand when - during that - that June conversation when I asked Ms Taylor if it was because we worked together or, of course, we have kids and the answer that she told me was honest and reasonable and that it was just - that I don't see [you] in that way. I'm very aware that that was the first time that she said that. I'm very aware that sometimes it can be difficult to - to say that to someone. Sorry. When you say it was the first time that she had said that, first time she had said what?---Those words - - - What words?---I just don't see [you] that way. She had sent a text to you on 27 January making that pretty clear, hadn't she?---Yes, and I accepted that. And the reason she had to say it again on 1 June was because you had declared your interest for her again?---No. I - I was dating and pursuing other relationships and I was in one at that time. Well, I suggest to you, Ms - Mr Grew, that you're lying?---I don't accept that at all. 278 Ms Taylor was due to return to the office on 9 June 2020. On 8 June 2020, the Queen's birthday public holiday, she and her sister chatted via text. In the course of the chat Ms Taylor wrote: I'm a bit anxious about tmw but just gotta smash through it[.] 279 Sonia replied: Yeah Be really normal Set the tone And practice boundaries already!!!!!

[41]

Request to reduce working days 282 On 11 June 2020 Ms Taylor had a meeting with Mr Grew in which she requested to work four days a week on the same rate of pay. It is common ground that during the meeting Mr Grew told her that this was equivalent to a request for a 20 per cent pay increase (which it was). Ms Taylor said that he became "quite cold and serious in that moment", which upset her and caused her to "get a bit teary". Mr Grew accepted in cross-examination that she became emotional during the conversation. After the conversation Mr Grew fetched her a glass of water and she left the office for a brief walk. 283 In cross-examination Ms Taylor testified that her response was largely a reaction to the way Mr Grew spoke to her rather than to what he actually said. She described him as "closed off and shut down and cold and emotionless". 284 Mr Grew testified that he told her that accommodating her request would be difficult as the business was "just coming out of COVID" and that he need a few months to "sort things out" if he were to grant it. In cross-examination Ms Taylor accepted that he was open to having a conversation but needed some time to consider the request. 285 Mr Grew testified that he then said: In the meantime, you've been working one day a week from home for a few weeks now and a couple of people have expressed some concerns that they felt it was - it was a form of special treatment because they don't get to do the same and I think it's best that you come back into work full-time until we can make that happen because your role is primarily onsite and I need to have everyone on board so we can come out of COVID strong. 286 Ms Taylor denied that he said that. 287 That night she had the following text exchange with Mr Grew: MS TAYLOR: Hey. So the reason why I got emotional today was because I felt things changing in our dynamic and it triggered an emotional wave in me. I don't want things to change but I guess they have to. I care about you a lot so that makes this quite difficult, especially knowing I've made you feel upset about things. Despite all of this, I know you're a good person with a good heart. I'm quite an emotional person and I don't like upsetting people. MR GREW: Hey, i don't want our dynamic to change either. I value you as a person greater than anyone else I know and the dynamic and friendship that we have has given me strength and support. I know that you're an emotional person and it's a really beautiful quality. I've just been wrestling with the thought that Ive damaged the friendship that we've had and let it down somehow. Regardless of all of that we work well together and make a strong team. I don't want to change that[.] MS TAYLOR: The friendship is still there on my end, which I want to keep. (Emphasis added.) 288 Ms Taylor testified that she felt a little better after receiving his response because she felt like "he had actually … heard and understood where [she] was coming from". She said she genuinely hoped that she would be able to continue working for Grew & Co at this point. 289 In ensuing text messages, Mr Grew offered Ms Taylor a lift to work on the following Monday. She responded saying that "it might be too soon" as she needed her "emotions to sizzle down a bit first". 290 In cross-examination, Mr Grew accepted that their "dynamic" had changed by then.

[42]

Further interactions in June - July 2020 291 Around 15 June 2020 Ms Taylor informed Mr Grew via text that she needed to leave work at 4:15 pm to pick her car up from a service. Mr Grew readily agreed. Ms Taylor accepted that Mr Grew had no issue with her leaving early and that this was consistent with his previous behaviour towards her. In the text exchange he also complimented, and expressed his appreciation for, her work. 292 Around 19 June 2020 Mr Grew sent a text to Ms Taylor offering her a lift to work. She replied: "That would be great, as long as you're sure!". She accepted in cross-examination that she was not reluctant to accept his lift. 293 On 25 June 2020 she sent Mr Grew a text saying, "not sure if I said yes or no but I have to drive myself tomorrow", to which he replied "[o]k no problem". 294 On 30 June 2020 she asked whether it was possible for Mr Grew to give her a lift to work. 295 On 28 July 2020 at 7:33 pm Ms Taylor sent Mr Grew a text asking permission to start work at 10:30 am the next day because she had a private inspection. She accepted that Mr Grew had no difficulty allowing her flexibility to attend the house inspection but noted that he "made [her] take it as leave, which he ha[d] never done before". Mr Grew explained that he asked her to take leave because the store was only open from 9 am to 5 pm so there was no opportunity for her to make up the time after 5 pm, which he acknowledged was what "she may have been able to do in the past", ie pre-COVID. 296 Ms Taylor testified that her mental health "definitely started to decline in July" because "Mr Grew's treatment towards [her] definitely had changed". She continued: He actually had a conversation with me and said that he could no longer give me special treatment and he has to treat everyone the same. And he started to be quite cold towards me. He would limit his conversation with me as so much to, "Hi" and, "Goodbye," some days. He would leave me out of important conversations to do with my role and things that directly affected my role. At times, he was quite hostile towards me.

[45]

Inadvertent text message criticism 303 Two days later, on Friday 7 August 2020 Mr Grew sent a text message to Ms Taylor that was obviously intended for someone else. It read: Unfortunately Fiona was pretty quick to deflect blame from her onto you this morning. Don't worry everything was fine but it was interesting to see how quickly she'll throw it onto someone else so she doesn't look bad. 304 When he realised what he had done Mr Grew texted her again, explaining that the text was sent in error and asking whether they could talk about it when she returned. Ms Taylor testified that, on her return to the office, she was too upset to talk to him and, when Mr Grew asked to talk about it, she replied: "Not right now. Maybe on Monday", and left for the day. 305 On Monday 10 August 2020, Ms Taylor testified that she did not go to work because she "felt completely overwhelmed and anxious". 306 She attended work the next day, however. Late morning, she had a meeting with Mr Grew in a nearby café and confronted him about the text. She recalled asking Mr Grew for whom the text was intended. He told her that was not important. He did not apologise. She testified that he said her productivity had declined, that she was "late to work five Friday mornings ago or 10 minutes late to work five Friday mornings ago", that she had "been on [her] phone more" and "basically proceeded to tell [her] how [her] work had kind of gone downhill". She recalled him making a comment about "trying to accommodate [her] going down to part time work". She told him she was no longer interested and asked him why he was doing that. She said he replied: "I've been talking to my accountant and he's worried about the amount of access you have to the company". Ms Taylor was taken aback by his reply and also "quite confused". She became "visibly upset a few times during that conversation because it seemed to be going nowhere". She returned to work after the conversation to "collect [her] things and leave". 307 In cross-examination she admitted to being concerned at the time that, whereas her late starts and early departures had become a norm Mr Grew had created, she was now being required to take leave, but did not think she had raised it with him in that conversation. She conceded that he might have told her that he was "just trying to treat everyone equally" and that she was being treated no different from everyone else. She felt that he was being cold to her and told him as much. She recalled telling him that he had "basically stopped talking to [her] in the office" other than saying "hi" and "goodbye". 308 Mr Grew recalled their conversation on 11 August 2020, after his inadvertent text message criticism, in the following way: Ms Taylor said to me, "Who was the text meant for?", and I said the recipient of the text is not important, but the content of the text is, and I was made aware of several occasions where other people were blamed for mistakes that you had made, and I said that concerns me, and … I said I was also concerned that your punctuality and productivity have slipped because you've been arriving late and leaving early more and you're spending a lot more time on your phone … and Ms Taylor said, "But I contact suppliers on the phone". And I said, "That's okay, but you're also spending a lot more time on the phone texting and when other employees see you doing that, it implies it's okay for them to do the same", and she said, "Me coming in late and leaving early is a normal that you created for me", and I said that … "After COVID, I'm just trying to keep - to keep everyone equal and treat everyone the same and she said … "You've been cold to me and now we only talk about work things", and I said that, "We're a jeweller down and I've got to spend all of my time in the workshop to try and keep things moving and I just don't have the time to - for conversation with everyone", and I said, "I'm the same with Andy and with Ayesha and Christina and - and everyone else", and I said, "I'm just trying to get through what I have to do each day", and she said … "All of - all of your best designs are mine and I've made so much money for you", and then she said, "And I could be talking to lawyers. So - I mean, I'm not, but I could be, but I've been protecting you this whole time". And I said, "Protecting me from what?" And actually, that was when she mentioned the lawyers. And then she said, "I don't even know if I want to work for you anymore". And I said, "Well, that's something that only you can think about". And she said, "I'm going to - I'm going to go back to the office, I'm going to get my things and then I'm leaving". And I said, "Okay". … When she went back to the office, she was angry. She was visibly angry. Little contact with anyone. Went into the office, shut the door, came out briefly. I notic[ed] that she was packing up all of the belongings on her desk. She came out into the workshop, she … shuffled some things around. She took a couple of packets from my job-box, which has all the things that I was working on, and she went to the safe. I - I presumed she was putting things from her desk back in the safe. She did go into the safe and - and she packed things into her backpack fully. 309 Ms Taylor admitted taking the Mociun care guide and cloth as well as two rings in the job box that she says were gifted to her. 310 Ms Taylor did not return to the office after 11 August 2020.

[49]

Which of the items were gifts and/or unsolicited? 317 It will be recalled that the respondents disputed that the following items were unsolicited and/or gifts: the emerald and diamond platinum ring; the Hydra ring; the six stone diamond necklace; the peach sapphire; the diamond cluster necklace made with the peach sapphire; the $2,000 in cash; the massage; the Gemini stud earrings; the Michael Kors jacket; the MECCA gift card; and the Stuller gold earrings. 318 It is difficult to understand how Mr Grew could ever have disputed that any of these items were gifts and/or unsolicited. The evidence is all one way. Contrary to Mr Grew's evidence, the fact that Ms Taylor had mentioned to him that she wanted a piece of jewellery does not mean that the piece was solicited or that it was not a gift. 319 As I indicated earlier, however, there is no evidence that the channel set diamond ring was unsolicited or a gift. 320 The respondents also disputed that the following items were provided to Ms Taylor, unsolicited and/or gifts: the gold signet ring; the white gold hammered band ring; the 5 mm silver ring; and the 10 mm silver ring. 321 As indicated at [167] above, the contemporaneous text message exchange supports Ms Taylor's version of events and the fact that the gold signet ring was gifted to her in early March 2020. I find it was a gift. 322 It will be recalled that the other three rings were made to enable Ms Taylor to disguise some tattoos. I find that Mr Grew agreed to make the rings and sent Ms Taylor a text message saying that Mr Tanaka could make them. That much was not in dispute. There is a conflict in the evidence about what happened next. Ms Taylor said that Mr Grew gave them to her. He denied that. In cross-examination Ms Taylor accepted that Mr Tanaka brought the finished rings to where she was sitting. That is not necessarily inconsistent with Ms Taylor's evidence in chief because, even if Mr Tanaka delivered them to her, her case is that they were a gift from Mr Grew. 323 Ms Taylor said that Mr Tanaka put the rings in a job box. Mr Tanaka admitted that was his general practice. On this particular occasion, however, he insisted he did not do that but handed them to Ms Taylor. I accept Mr Tanaka's evidence. He had a distinct recollection of doing so and he was not shaken in cross-examination. But nothing really turns on the difference in the evidence. There is no dispute that the rings were made by Mr Tanaka as a result of Mr Grew's offer to make them or have them made and Ms Taylor was never charged for them. 324 I do not accept Mr Grew's evidence that he did not ask to see the rings. I found Ms Taylor's evidence convincing on this point. I also accept Ms Taylor's evidence that the white gold hammered band was made at the same time. Mr Tanaka remembered a white gold hammered band. He did not remember it being in the same "job packet", but he did not deny it. 325 The text message suggests that Mr Grew agreed to the making of the silver rings. Ms Taylor did not explain why one of the rings was made in white gold. Since she was not charged for it, however, I accept that it, too, was a gift.

[50]

Did Mr Grew slap Ms Taylor on her buttock(s) on 23 July 2019? 326 It was submitted on Mr Grew's behalf, in effect, that Ms Taylor's account was incredible. This was the written submission: The version of events as set out by Ms Taylor are physically impossible. Ms Taylor's evidence was that Mr Grew was standing to her right, he swung his right arm and struck her right buttock cheek. Further, it is extraordinary that the incident (if it occurred), which can easily be regarded as the most overt instance of sexual harassment claimed, would be entirely uncorroborated, and that there would be no evidence of any reporting of such conduct to a confidant - not even Ms Taylor's sister - if it indeed occurred. Ms Taylor's evidence, in any event, is that she regarded the 'slap' as accidental at the time. It is not clear that she ever considered the conduct to have been intentional - or the basis for any such change in her belief. Her evidence is simply silent and unexplained. On no view could the conduct, if accidental, amount to sexual harassment. 327 I reject the submission that the events as Ms Taylor described them are "physically impossible". Ms Taylor's evidence is that he was standing behind her "slightly to [her] right". Whether he could have struck her depends on the angle of his position and this particular matter was not explored in the cross-examination. It is not difficult to understand how, in an underarm swing of the kind Ms Taylor described across Mr Grew's body in her direction, his hand could have collided with her right buttock. 328 I also reject the respondents' submission that Ms Taylor's statement in cross-examination that there was "a natural pause" at the machinery was a fabrication. I consider it more likely that she had not previously been questioned in such detail about the event such that she had not thought to mention it before. 329 Nor do I think the absence of recent complaint, which is the essence of the second point, is significant. While it was once the case that a jury in a sexual assault case had to be warned that it was unsafe to convict on the uncorroborated evidence of a complainant, that has not been the case now for nearly 40 years. In The Common Sense of Jurors vs The Wisdom of the Law: Judicial Directions and Warnings in Sexual Assault Trials [2005] UNSWLawJ 261 at 265, Dorne Boniface explained: The corroboration warning requirement in sexual assault cases reflected two assumptions: first, that sexual assault complainants frequently make false allegations due to perhaps neurotic fantasy, shame or spite; second, that it was especially difficult in the context of one person's word against another's, with little other evidence to determine the conflict, for juries to detect false allegations. 330 Ms Boniface went on to observe the first assumption proved to be false: As the problem of non-reporting of sexual crimes became recognised, the idea that sexual assault allegations are easy to bring and sustain to conviction became progressively more implausible. The practical and psychological barriers to taking matters to court were recognised and the necessity of confronting artificial evidentiary hurdles began to be questioned. In addition, the moral climate was changing. The social consequences of extra-marital sex were diminishing and there was no longer any reason to support the assertion that false allegations were widespread and that they necessitated an automatic corroboration warning in all sexual assault prosecutions. The utility of the corroboration warning was also questionable. As a contribution to rational adjudication the warning was either superfluous where the complainant's unreliability was obvious or useless where the complainant was a skilled, convincing liar. It also gave the harmful impression that the criminal justice system unfairly discriminated against sexual assault complainants. 331 Now, it is well recognised that people may not complain about a sexual assault for a host of reasons. And this knowledge has contributed to legislative changes. Currently, in New South Wales, for example, judges are required to instruct juries in prescribed sexual assault cases that a delay in complaining or a failure to complain does not necessarily indicate that the allegation is false as there may be good reason why a victim of a sexual assault may hesitate to complain or refrain from complaining. Judges are prohibited from directing juries that delay in complaining is relevant to a complainant's credibility unless there is sufficient evidence to justify such a direction. See Criminal Procedure Act, s 294. 332 Furthermore, sexual harassment is notoriously under-reported. In January 2019 Professors Paula McDonald and Sara Charlesworth, of the Queensland University of Technology and RMIT University respectively, explained in a submission made to the National Inquiry into Sexual Harassment in Australian Workplaces conducted by the AHRC and admitted into evidence without objection: Those who experience workplace sexual harassment are often caught in a bind when deciding on the timing of making a complaint to their employer. When they report the behaviour immediately, observers perceive them as more credible and the harasser as more responsible. Yet for an individual to reach a point where they are ready to make a complaint, they must first process what has happened to them, weigh up the available options open to them, and determine the possible detriments that may result from making a complaint. Consequently, there can be a significant, yet legitimate delay between experiencing sexual harassment and reporting it, if indeed it ever gets reported. (Footnotes omitted.) 333 In her report to this Court, Prof Charlesworth noted that the 2018 Sexual Harassment Prevalence survey conducted by the AHRC showed that fewer than one in five (17%) of survey respondents who had experienced sexual harassment made a formal report or complaint. 334 The likely explanation for the absence of a contemporaneous complaint in the present case is that at the time Ms Taylor did not take the slap seriously. That is not to say that she welcomed it. I will come to that later. It is only with the benefit of hindsight, after she learned of his true feelings for her, that she took umbrage. Moreover, she loved her job and did not want to lose it. It was only when his behaviour towards her changed after she had rebuffed his renewed expression of his feelings and she had stopped work, that she summoned up the courage to do something about it. 335 I attach no weight to the fact that in the letter of 28 August 2020 the episode on 23 July 2019 is described as a touch rather than a slap in the light of the history given to Dr Karolina Yohendran in the consultation on 12 August 2020. The doctor's notes relevantly recorded: work place harrassment groo and co jewlery sexual harrassment boss slapped on the bottom 336 I am comfortably satisfied that Mr Grew slapped Ms Taylor with a cupped hand on her right buttock in July 2019. Contrary to the submissions put on behalf of Mr Grew, her account had the ring of truth to it. As she recounted the episode, she appeared to be reliving rather than reconstructing the event. Moreover, her account was far more credible than Mr Grew's. If his version were true, there would be no occasion for him to apologise at all, certainly not twice. In fact, there would be no reason to remember the event. Indeed, it is unlikely he would even be able to remember it.

[51]

Did Mr Grew make unsolicited comments to Ms Taylor about her appearance between October and December 2019 as alleged? 337 While Mr Grew denied ever saying to Ms Taylor words to the effect that she has "a really nice body", it is an agreed fact that he told her she had "a beautiful body". The difference is immaterial. 338 There is also no dispute that Mr Grew sent a text message to Ms Taylor in which he referred to her as "perfect" and "100% perfect" and another in which he told her she looked "amazing" that day. 339 Mr Grew denied telling Ms Taylor that she had "bedroom eyes" in a provocative tone or otherwise in a conversation in November 2019. It is true that this specific allegation was not mentioned in the letter from Ms Taylor's solicitors on 28 August 2020 or in her complaint to the AHRC. But I do not accept that it was a recent invention as suggested by the cross-examination. Both the AHRC complaint and the letter included an allegation in or to the effect that "since October 2018, Mr Grew engaged in a course of conduct towards Ms Taylor of making persistent unwelcome advances toward her of a sexual nature", which included "commenting on her physical appearance". Ms Taylor may have been mistaken about precisely when the comment was made but I am persuaded that it was made during the period between October and December 2019 and in the context in which she said it was made. It is the kind of thing she would remember. It is an odd thing to make up. I consider Mr Grew's denial to have been insincere. 340 It is preposterous to suggest that Ms Taylor solicited these comments and no such proposition was put to her. There is no room for doubt on the evidence that they were all unsolicited. 341 On the other hand, the allegation that Mr Grew told Ms Taylor that he liked "petite curvy brunettes" is not made out. Ms Taylor's evidence was that words to that effect were uttered to a customer, not to her. In the circumstances it is unnecessary to determine whether or not Ms Taylor's account was truthful, accurate or reliable. Even if it were, it is does not prove the pleaded allegation.

[52]

Did Mr Grew say to Ms Taylor the things she attributed to him in the conversations in the office on 6 January 2020 and in the car on 1 June 2020? 342 Since neither party made contemporaneous notes of the conversations, the evidence of each of them is obviously deficient. In these circumstances neither of them is capable of giving a complete account. It is true that Ms Vu, in her account of the conversation on 7 January 2020, tends to corroborate Mr Grew's statement that Ms Taylor told him she needed time to process what he had said. Still, in view of the contemporaneous text messages and my impressions of the witnesses, I am satisfied that Mr Grew said the things Ms Taylor recalled or things to the same effect. I am confident that she was giving truthful evidence about both these events. 343 It follows that I find that on 6 January 2020 Mr Grew told Ms Taylor that he had developed feelings for her, which he could no longer keep to himself and wanted to share with her; that he thought she was the most beautiful woman he had ever seen; that they get along so well; that she could be both a friend to his children and his business partner; and that he could not find anyone else with the same qualities. I also accept that Ms Taylor made it plain to him that she was not interested in anything but a platonic relationship. 344 To the extent that it is inconsistent with Ms Taylor's, I cannot accept Mr Grew's account of the conversation on 1 June 2020. On his version, Ms Taylor's reaction to Mr Grew's remarks on this occasion, as evidenced by the contemporaneous report to her sister and supported by the contemporaneous text messages, makes no sense. It is out of all proportion to what Mr Grew claims to have said. It is far more consistent with the version given by Ms Taylor. And there is nothing else to account for it. Moreover, Ms Taylor's account is also consistent with Mr Grew's contemporaneous text messages. 345 It follows that I reject Mr Grew's evidence that he did not press upon Ms Taylor in that conversation the feelings he had first revealed to her in January. I also accept Ms Taylor's evidence that she did not mention her new boyfriend (Chris) to him at that time. 346 Ms Taylor's account is also supported in both respects by Ms Vu's evidence. 347 Ms Vu admitted in cross-examination to speaking with Ms Taylor about Chris on a number of occasions including at the time Ms Taylor began seeing him (about May 2020). Ms Vu admitted that Ms Taylor had indicated to her that she did not want Mr Grew to know about the relationship. Ms Vu also admitted that she told Ms Taylor that it was not fair that Mr Grew did not know. She said: "It's better that he knows, so there's no confusion". Ms Vu also admitted that the reason she wanted him to know is that she assumed at that time that Mr Grew still had feelings for Ms Taylor. 348 In these circumstances it is unlikely that Ms Taylor would have disclosed the relationship to Mr Grew in the conversation on 1 June 2020. It is more likely that he learned about the relationship afterwards. This aspect of the conversation may have been merely a false recollection or it may have been a fabrication. It is unnecessary to decide which alternative is correct. Regardless, I am satisfied that Ms Taylor was truthful when she denied speaking to Mr Grew about Chris. 349 More importantly, Ms Vu's evidence that she knew Mr Grew still had feelings for Ms Taylor tends to support Ms Taylor's account over Mr Grew's. While Ms Vu said that her knowledge was just "a personal assumption", based on an intuition, it must have been based on her interactions with Mr Grew.

[55]

The gifts 352 In her amended statement of claim, the gift giving was pleaded under the heading "Unwelcome conduct of a sexual nature", but the allegations relating to the individual gifts were that they were unsolicited, not that they were unsolicited and unwelcome. Moreover, Ms Taylor was rarely asked directly whether the gifts were welcome or unwelcome. Nevertheless, the parties agreed that one of the issues to be resolved was whether the gifts were unwelcome. 353 In her closing written submissions, Ms Taylor merely asserted that the gifts were unwelcome (at [21]), relying on her testimony about how she felt about receiving them. The respondents' argued otherwise, pointing to the gratitude expressed by Ms Taylor in her text messages; her requests for the making of some of the jewellery; and her failure to decline or return any gifts at any stage. 354 In reply, Ms Taylor submitted that it was "entirely artificial … to take each gift, comment or conversation out of its context" and that the chronology established that Mr Grew engaged in a course of conduct which was "unwelcome and clearly constituted an overall sexual advance towards [her] or conduct of a sexual nature". 355 I agree that it is artificial to take each gift, comment or conversation out of context but the agreement the parties reached about the issues invited such an approach. Indeed, Ms Taylor's barrister, Mr Mahendra, made it clear in his closing argument that the case he was advancing was that each act of gift giving was unwelcome conduct of a sexual nature which amounted to sexual harassment. He told the Court that he relied upon the gift giving "both individually and collectively". Nevertheless, he said that he largely relied upon the gifts and comments for context rather than as individual instances of unwelcome sexual conduct. As he put it in opening argument with respect to the gifts: [T]hose matters, to a large degree, simply provide context in which the ultimate sexual harassment occurred, and we say that ultimate sexual harassment really were the sexual advances that were made in January and then ultimately in June, which has caused Ms Taylor to suffer such an injury. 356 None of the conduct in question in the present case was explicitly sexual in the strict sense. Apart from the slap on the bottom, Mr Grew was not said to have touched Ms Taylor in an inappropriate way. Nor did he ask her for sex. But that is by no means the end of the case. 357 The first question is whether any of the gifts were unwelcome. 358 I reject the submission made in closing submissions for Ms Taylor that it was not open to the respondents to argue that any of the following gifts were unwelcome because they had not challenged her "direct" evidence about how she felt when she received them: the Chanel coin purse; the emerald and diamond platinum ring; the Hydra ring; the diamond cluster necklace incorporating the peach sapphire; the jade bangle; the Gemini stud earrings; the silver signet ring; the Stuller gold earrings; the massage; the $2,000 cash; and the MECCA gift card. That is simply untrue. 359 In the case of the Chanel coin purse, Ms Bulut, counsel for the respondents, directly put to Ms Taylor in cross-examination that, "by keeping it and accepting it and saying thank you, it was a gift that [she] welcomed". As for the necklace, Ms Bulut put to Ms Taylor that she had no reluctance in accepting it as a gift, did not insist on paying for them, and did not return them. With respect to the jade bangle, Ms Bulut took Ms Taylor to her text response and put to her that it was an expression of her appreciation for the gift. 360 In the case of the emerald and diamond platinum ring, Ms Taylor did not testify that it was unwelcome. There was therefore nothing to contradict. In the case of the Hydra ring, Ms Taylor testified she felt uncomfortable and she was challenged on the explanation she gave for her alleged discomfort. In relation to the Gemini stud earrings, it was put to Ms Taylor that, by thanking Mr Grew in the way that she did, she was indicating her appreciation and gratitude for the gift. In the case of the silver signet ring, Ms Bulut put to Ms Taylor that she gave no indication to Mr Grew that she did not want it and that she never returned it. Similar propositions were put to Ms Taylor in the cross-examination in relation to the other items. True it is that Ms Bulut did not go further and put to her that the reason she did neither was because the gift was not unwelcome, but I do not consider that the respondents are precluded from asking the Court to draw inferences from her answers to the questions that were put. 361 It is impossible to conclude that all the gifts were unwelcome. Ms Taylor did not give evidence to support such a conclusion and the contemporaneous documentary evidence suggests otherwise. 362 In some instances, Ms Taylor testified that she felt awkward and/or uncomfortable to receive the items. That can be taken as an indication that they were unwelcome, as Mr Mahendra clearly inferred. She testified that the gifting of the Hydra ring made her feeling "uncomfortable and overwhelmed", that the six stone diamond necklace and the diamond cluster necklace made with the peach sapphire made her feel "a little awkward" and "overwhelmed at the same time", and that the gifting of the silver signet ring made her feel "awkward" and "uncomfortable". In relation to the jade bangle, she felt "extremely awkward" because of her belief that Mr Grew had given the same bangle to his ex-wife. In the case of the Michael Kors bomber jacket, that she remembered suggesting for Mr Grew's ex-wife the previous Christmas, she testified that she felt "really uncomfortable". The contemporaneous text messages between Ms Taylor and her friend, as well as the messages between Ms Taylor and her sister, tend to support that conclusion. Finally, she said she felt "extremely awkward" about the fact that, unlike Ms Vu, she was not required to pay for her Gemini stud earrings. 363 Ms Taylor did not say or indicate that the white gold hammered band ring, 5 mm silver ring or the 10 mm silver ring were unwelcome. In relation to the gifting of the Chanel coin purse, the emerald and diamond platinum ring, the peach sapphire, and the Gemini stud earrings, Ms Taylor gave evidence that she felt shocked and/or overwhelmed to receive each of them. In relation to the $2,000 cash, she testified that she was "a bit tired of saying no" and said that she was "starting to feel anxious" about her employment at Grew & Co. 364 In her evidence in chief, Ms Taylor did not say that the massage was unwelcome but the matter was raised in cross-examination and in evidence in reply she made it clear that it was. Despite Ms Taylor's evidence, I am unable to accept that the massage was unwelcome. I consider it more likely than not that Ms Taylor's text messages genuinely reflected the way she felt at the time. Mr Grew did not massage her or offer to do so. He booked her in with a masseuse. I can see no reason - even in context - why she would have reacted in any way other than with gratitude. 365 Ms Taylor did not testify, in terms, that the MECCA gift card was unwelcome. In her evidence in chief, she was not asked how she felt to receive it. In cross-examination, however, it was put to her that she did not decline the gift or indicate at all to Mr Grew that she did not want it. She rejected the proposition, replying (at T186): Not in those words. Me suggesting him to use it on himself was - was that. 366 Similarly, when it was put to her that she had no difficulty accepting the gift, Ms Taylor replied (at T189): Not necessarily. I tried to get him to use it, and then I accepted it after that. 367 An unwillingness to reject the gifts is understandable, given the employment relationship and Ms Taylor's unchallenged concern not to offend Mr Grew. She might well have felt conflicted. She repeatedly said, and I accept, that she was concerned about offending Mr Grew because she liked her job and wanted to keep it. True it is, she did not return the items. But the fact that Ms Taylor did not return any of the gifts is not conclusive. She was never asked whether she wore any of the items of jewellery or the bomber jacket. With one exception, there is no evidence to indicate she wore the jacket or the jewellery (other than in the store) or that she ever made use of the purse or the MECCA gift card. She could have sold them or given them away. On the other hand, for all I know she might make use of all the gifts. The exception is the emerald and diamond ring. Her desire to have it remade into gold because she had changed her jewellery preference from silver to gold suggests that she had worn it or would have worn it if it were remade. Also later, after Mr Grew demanded its return or payment in lieu, she elected to pay him rather than return it. 368 Nevertheless, with the exception of the bomber jacket, I find it difficult to accept that any of the gifts were unwelcome before Ms Taylor knew that Mr Grew had feelings for her, that is before 6 January 2020. In all likelihood, her evidence to the contrary is a reflection of how she subsequently felt about them. In other words, it is affected by hindsight. 369 Two gifts were presented to Ms Taylor after Mr Grew's confession in January 2020. They were the gold signet ring and the Stuller gold earrings. In relation to the former, Ms Taylor testified that she was "shocked" to receive it and, in light of Mr Grew's confession and the anxiety it caused her, she felt "trapped" in a "difficult situation". In relation to the latter, Ms Taylor said she felt "a bit awkward and uncomfortable". Having regard to the time that each of these gifts was presented to her, during March 2020, I accept that they were unwelcome. 370 The next question is whether the gift giving amounts to a sexual advance or other conduct of a sexual nature. 371 Plainly, the mere act of gift giving is not sexual in nature. 372 The evidence is not sufficient to establish that Mr Grew had any romantic interest in Ms Taylor before July or August 2019. Some 10 gifts were given to her before this time. Eight were given after this time. 373 Although most of the gifts were items of jewellery, Mr Grew was a jeweller and Ms Taylor worked in the jewellery business. Apart from the jade bangle, the peach sapphire and the Stuller gold earrings, all the other pieces were made by Mr Grew, or another jeweller at Grew & Co, often at Ms Taylor's request and he merely declined to charge her for them. I do not consider that in these circumstances the giving of jewellery, even if unwelcome, amounts to conduct of the kind described in s 28A. The position might very well be different in other circumstances. 374 Nor do I consider that the $2,000 cash gift, the MECCA gift card or the massage amounted to a sexual advance or other conduct of a sexual nature. There was nothing sexual about any of these items or the circumstances surrounding their presentation, whether considered individually or collectively. And I do not consider that any of these gifts were, or were part of, an attempt by Mr Grew to ingratiate himself with Ms Taylor. 375 On the other hand, apart from the cash, the gift card and the massage, I am persuaded that the gifts Ms Taylor received after July 2019 (the Gemini earrings, the two signet rings, the Stuller gold earrings and the Michael Kors bomber jacket) were expressions of Mr Grew's affection for Ms Taylor and his desire to enter into a romantic relationship with her and were therefore, both individually and collectively, either a sexual advance or other conduct of a sexual nature. In substance, they were part of an attempt to woo her.

[58]

The overtures in January and June 2020 378 In closing argument, Mr Goot AO SC, who then appeared for the respondents, referred to Spencer v Dowling at 156 in which Hayne J doubted that an expression of love could always properly be said to be a "sexual advance" within the meaning of the term in s 20(1)(a) of the Equal Opportunity Act 1984 (Vic). He thought if saying no more than "I love you" was a sexual advance, that would appear to "stretch the meaning of 'sexual advance' beyond ordinary usage of the term". Hayne J's observations in Spencer v Dowling are of no assistance. Even if his Honour's scepticism were justified, he was at pains to emphasise that "the question is one of fact and degree" and that he did not consider that it was not open to the Equal Opportunity Board to find that, when taken in context, a letter from an employer to his employee (in which he declared his love for, and desire for marriage and children with, his employee) constituted a sexual advance. Thus, a "sexual advance" may include a declaration of love; it all depends on the context. 379 In Spencer v Dowling, the employer took the employee aside telling her he had something to say to her. He declared he was in love with her and handed her a letter, which sang her praises as a professional woman and told her he had been "wrestling" for months with his desire for "an emotional involvement" with her before proclaiming (at 134): Finally I realised that my feelings towards you are those of love. Not only romantic love but the love of someone who has found a true partner. In you, I have seen the fulfilment of my life's dream - the woman with whom I could have a complete relationship, enjoying and sharing everything that life has to offer. I have thought, dare I say it, of us with children; of sharing with you all things. 380 The Equal Opportunity Board considered that the letter implied that the employer was seeking a "sexual relationship" with his employee (at 136). All members of the Court of Appeal held, relevantly, that it was open to the Board to find that the employer's conduct, although sincere and in good faith, amounted to sexual advances. 381 In Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 at 252-3 (Hall v Sheiban) Wilcox J said: Conduct is capable of being regarded as "unwelcome conduct of a sexual nature" notwithstanding that it consists of the making of absurd promises or declarations of love. It might be distressing to a female employee to have the ardour of her male employer constantly pressed upon her, in circumstances where she reasonably apprehends that any protest will jeopardise her continued employment. 382 It was submitted for Mr Grew that there was no romantic proposal in the conversation on 6 January 2020. Strictly speaking that is true. There was no express proposal for sex, marriage, children, a candlelight dinner or even a date. But Mr Grew's declaration that he had "feelings" for Ms Taylor was an expression of his desire to enter into an intimate personal relationship with her, that is to say, to take their friendship beyond the platonic. Implicit within it was a desire for sex. I am satisfied that the statements made to Ms Taylor in the conversation on 6 January 2020 constitute a "sexual advance" within the meaning of the term in s 28A of the SDA in that it amounts to "an amorous overture" (Spencer v Dowling at 156). Alternatively, it constitutes conduct which invited or otherwise explored the prospect of Ms Taylor participating or engaging in some form of sexual behaviour (Poniatowska at [294]). In this respect they also amounted to "other conduct of a sexual nature" within the meaning of that expression in s 28A of the SDA. 383 I am also satisfied that the conduct was unwelcome. Ms Taylor told Mr Grew at the time that she did not feel the same way as him. His approach made her anxious. She made it clear that she had no interest in him and insisted on establishing boundaries. In cross-examination Mr Grew conceded that she wanted those boundaries because she did not have a romantic interest in him. Notwithstanding the comment in his text that he did not know "if saying what I did to you was the right or wrong thing to do", he also conceded in cross-examination that he knew at the time of writing it that it was the wrong thing to do. 384 I am also satisfied that the overture made to Ms Taylor on 1 June 2020 amounts to unwelcome conduct of a sexual nature for the purposes of s 28A. 385 Mr Grew insisted that he was not declaring his feelings in the conversation of 1 June. Rather, he was referring to the conversation they had had six months earlier. I do not doubt that Mr Grew referred to his January declaration in this conversation but I do not accept his evidence that he had no romantic interest in her at this stage. The contemporaneous text messages indicate otherwise as does Ms Vu's evidence. 386 In oral argument, Mr Goot conceded that it would be open to the Court to conclude that on this occasion the text messages were more consistent with Ms Taylor's version of events than Mr Grew's. In particular, Mr Goot frankly acknowledged that the statement Ms Taylor made in her text to Sonia that "[h]e brought up stuff and I had to tell him I don't see him in that way and he needs to move on and close this off …" was consistent with her version. Those concessions were properly made.

[59]

Were the circumstances in which the relevant conduct occurred such that a reasonable person would have anticipated the possibility that Ms Taylor would be offended, humiliated or intimidated? 387 In her pleading, Ms Taylor pointed to the following matters: the objective character of the alleged conduct; the age difference between her and Mr Grew; the fact that she was in a relationship for part of the period in question; the fact that Mr Grew was her "boss" and the sole director of her employer; and the power imbalance between the two of them. 388 The circumstances also include the fact that the first declaration of feelings was made at a time when Ms Taylor was particularly vulnerable as the relationship with her boyfriend, Brohn, was breaking down - a circumstance of which Mr Grew claimed to be aware. They also include the fact that, on his own admission, Mr Grew knew that declaring his feelings for an employee and making her feel anxious was "the wrong thing to do". 389 In their closing submissions the respondents argued that this element must be assessed by reference to "the conduct of Mr Grew and Ms Taylor over the entirety of their professional relationship" and that it would certainly include how they interacted with each other, as senior employees, the personal matters they discussed with each other; and the fact that it was common for gifts to be exchanged in the workplace. 390 With respect to the gifts, they argued that the relevant circumstances included the following matters: many of the gifts were not of a "particularly high value" or were made from materials with "relatively low and inconsequential" value; some were for Ms Taylor's birthday or for Christmas; Ms Taylor expressly indicated that she wanted certain items and designed some herself; it was beneficial for the business for employees to wear Grew & Co jewellery; and Ms Taylor never showed any discomfort in receiving the gifts. 391 I accept the submissions in relation to the gifts. Having regard to those circumstances and to Mr Grew's generous nature (illustrated by the gifts he gave not merely to her but to other employees), I am not persuaded that a reasonable person would have anticipated the possibility that Ms Taylor would be offended, humiliated or intimidated by this aspect of Mr Grew's behaviour. 392 While I am persuaded that a reasonable person would have anticipated the possibility that the remarks about her appearance would cause Ms Taylor some discomfort, I am not persuaded that such a person would have anticipated the possibility that she would be offended, humiliated or intimidated by them. As the respondents submitted, during the conversations with Mr Grew which led to the "beautiful" and "perfect" comments Ms Taylor shared personal details of her life and insecurities; Mr Grew and Ms Taylor were close, both personally and professionally; and they regularly discussed fitness, health and diet. Ms Taylor admitted she might have told Mr Grew that he was "looking really fit" and there is no dispute that Ms Taylor complimented Mr Grew on his "abs". 393 On the other hand, I am comfortably satisfied that in all the circumstances a reasonable person would have anticipated that possibility with respect to the slap on the bottom in July 2019 and the confessions of feelings made in January and June 2020 - despite the closeness of their professional and personal relationship.

[62]

The statutory context 396 Section 94 of the SDA relevantly provides: Victimisation (1) A person shall not commit an act of victimization (sic) against another person. Penalty: (a) in the case of a natural person - 25 penalty units or imprisonment for 3 months, or both; or (b) in the case of a body corporate - 100 penalty units. (2) For the purposes of subsection (1), a person shall be taken to commit an act of victimization(sic) against another person if the first-mentioned person subjects, or threatens to subject, the other person to any detriment on the ground that the other person: (a) has made, or proposes to make, a complaint under this Act or the Australian Human Rights Commission Act 1986; or (b) has brought, or proposes to bring, proceedings under this Act or the Australian Human Rights Commission Act 1986 against any person; or (c) has furnished, or proposes to furnish, any information, or has produced, or proposes to produce, any documents to a person exercising or performing any power or function under this Act or the Australian Human Rights Commission Act 1986; or (d) has attended, or proposes to attend, a conference held under this Act or the Australian Human Rights Commission Act 1986; or (e) has appeared, or proposes to appear, as a witness in a proceeding under this Act or the Australian Human Rights Commission Act 1986; or (f) has reasonably asserted, or proposes to assert, any rights of the person or the rights of any other person under this Act or the Australian Human Rights Commission Act 1986; or (g) has made an allegation that a person has done an act that is unlawful by reason of a provision of Part II; or on the ground that the first-mentioned person believes that the other person has done, or proposes to do, an act or thing referred to in any of paragraphs (a) to (g), inclusive. 397 Ms Taylor relies on s 94(2)(a), (b), (f) and (g). 398 A "detriment" is simply a disadvantage, albeit one of substance in the sense of real rather than trivial: O'Callaghan v Loder (1983) 3 NSWLR 89 at 105; Ministry of Defence v Jeremiah [1980] QB 87 at 99 (Brandon LJ). In the context of s 94, it can be either the harm or the act which leads to the harm: Georgiou v Spencer Holdings Pty Ltd (No 2) [2011] FCA 22 at [4] (Besanko J). 399 Section 94 creates an offence. There is conflicting Full Court authority on whether, in these circumstances, the Court has jurisdiction to hear and determine a claim of victimisation. Those authorities are Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118; 63 AILR ¶101-302 at [70]-[71] (Marshall, Rares and Flick JJ) on the one hand and Walker v State of Victoria [2012] FCAFC 38 at [98]-[100] (Gray J, Reeves J agreeing at [167]) on the other. 400 In Dye at [71] the Full Court said: [T]he purpose of s 46PO of the AHRC Act is to create a private cause of action … for unlawful discrimination including a contravention of s 94 of the Sex Discrimination Act. That statutory cause of action attracted the broad range of statutory remedies in s 46PO(4), including a right to damages by way of compensation for any loss or damage suffered because of the conduct of the respondent (s 46PO(4)(f)). Thus, the AHRC Act, read together with s 94 of the Sex Discrimination Act, creates a range of remedies for victimisation that includes damages, being expressly within the definition of unlawful discrimination s 3(1) of the AHRC Act. 401 I am bound by Dye to hold that it does and I am in no doubt that Dye was right. The remarks in Walker were obiter and made without reference to Dye, presumably because the Court's attention was not drawn to it. The respondents did not argue otherwise. 402 To succeed Ms Taylor must prove first, that she was subjected to, or threatened to be subjected to, at least one of the alleged detriments; and second, that the detriment was on at least one of the grounds upon which she relies. In other words, she must prove that she was subjected to the detriment and that there was a causal connection between the detriment and the ground. As to the latter, it is well established that a complainant need not prove that the nominated ground was the sole reason (s)he was subjected to the alleged detriment. Rather, as Buchanan J observed in Penhall-Jones v State of NSW [2007] FCA 925 at [85] with respect to the identical provision in the Disability Discrimination Act 1992 (Cth), it is sufficient if the ground relied on is "a substantial and operative factor". His Honour explained: At least one circumstance from the list in … the Act must be a reason for the alleged detriment or threatened detriment. It must afford a rational explanation, at least in part, 'why' an action was taken. The connection cannot be made by a mere temporal conjunction of events, by an incidental but non-causal relationship or by speculation. The establishment of the suggested ground is as much a matter for proper proof as any other factual circumstance. (Emphasis added.)

[66]

The response to the 28 August letter (the 4 September letter) 409 The 4 September letter contained an emphatic rebuttal of the allegations that Mr Grew made unwelcome advances to Ms Taylor and denied that he had contravened the SDA. It accused Ms Taylor of fabricating various matters and asserted that she had "manipulated Mr Grew during the course of her employment and took advantage of their relationship for pecuniary gain". It sought the immediate return of several items, which it claimed were "company property", or their cash equivalents, listing recommended retail prices. The items included the channel set diamond ring, the gold signet ring, four wide silver rings, an iPhone 11, gems, a yellow gold band, a platinum band, and the Mociun care guide and polishing cloth. 410 It also asked for confirmation that Ms Taylor had resigned from her employment and, if so, to put her resignation in writing. It asserted that her claim was "frivolous, vexatious and lacking in merit", without "any reasonable prospects of success", and foreshadowed applications for costs against Maurice Blackburn personally and on an indemnity basis in the event that any court proceedings were instituted. Notably, no interlocutory application was ever brought to have the application summarily dismissed on this basis. 411 The tone of the letter was disrespectful, belittling, even offensive. Examples include: "We have sighted many text messages from your client that, frankly, make her claim appear to be quite embarrassing" and "if your client feels 'triggered' by the Mociun ring, we suggest she returns it to the Company". 412 Mr Grew testified that he instructed his solicitors to make the request for the immediate return of the property although he was aware that Ms Taylor had been off work on sick leave since 7 August and was still an employee of Grew & Co. He said the jewellery consisted of stock items which could potentially be sold, the iPhone 11 could be used by another employee, and the Mociun care guide could be used as "a promotional resource". He claimed that he made the request because the 28 August letter indicated that Ms Taylor would not be returning to work. 413 In cross-examination, however, Mr Grew accepted that Ms Taylor was still an employee. He also accepted that when discussing the cost of particular gifts in his evidence in chief, he focused on the cost of the materials and gave evidence that the cost was "inconsequential". He accepted that the cost of the materials for the gold signet ring would be $100 or "maybe a bit more", although he was asking Ms Taylor to pay $1900 for it. He denied that he was now asking to be paid the retail price for all these pieces because she had made a complaint against him, although if an employee had asked for any piece of jewellery he would have had no issue giving it to them for cost or for nothing. He said that this was because, without the items, "we didn't have the opportunity" to sell them at a retail price. He denied that the only thing that had changed was that she had made a complaint of sexual harassment. But the only things to which he pointed to justify his denial were pre-existing. 414 Mr Grew accepted that in his letter he demanded $600 for the labour cost of remaking two of her rings in yellow gold although his practice was not to charge staff for labour, claiming that "it was unclear if Ms Taylor would be resigning from her position or returning to work". He then testified that he was not demanding Ms Taylor pay the labour cost but for the materials, or their cash equivalent, to be returned. Nevertheless, he conceded that the agreement was that he would take the platinum in exchange for the yellow gold and at no stage when Ms Taylor asked him to remake the rings in yellow gold did he tell her he would charge for his labour. Moreover, he also admitted that, if Ms Taylor had told him she was withdrawing her complaint and returning to work he would not require her to pay the money. 415 In relation to the Mociun care guide and polishing cloth, Mr Grew reluctantly accepted, in cross-examination, that he could have taken a photo of the care guide, although he maintained that it was necessary for him to retain it as it was "better to have it on hand". He did not accept that the polishing cloth was of no use to him. He did not accept that he made up his evidence about the care guide and polishing cloth in an act of retaliation against Ms Taylor after she brought her claim for sexual harassment. 416 When it was put to Mr Grew that there was no need for the items to be returned to him since on his own evidence their cost was "inconsequential", he said that following COVID "it was very difficult to bounce back" such that the company "needed all the resources that [it] could get on hand". He maintained that various items could have been returned to stock or used for business purposes, although he eventually accepted that there was no urgent or pressing need. He accepted, in effect, that there was no greater need for the return of the products after receipt of the 28 August letter than there had been in the previous three weeks during which Ms Taylor was away from work on sick leave, yet no demand was made for their return in that period. Mr Grew said that he did not request the return of Ms Taylor's iPhone 11 when she took leave in June 2020 because he imagined it would be for "a finite period of time". He denied that he requested the return of her phone after she was on sick leave from 7 August 2020 because of her sexual harassment complaint. He said he did so because "the phone could be utilised for work purposes". In relation to his request for Ms Taylor to bear responsibility for her phone bills from 12 August 2020, Mr Grew accepted that he had not previously asked her to do so while she was on any form of leave. The explanation he offered was that he had never been "in this situation before", by which he meant that no formal complaint had been made about him before. 417 In relation to the threat of a personal cost order, Mr Grew denied that his intention was to intimidate her, claiming that he merely intended to "respond assertively". 418 Ms Taylor testified that, upon reading the 4 September letter, she was "overwhelmed" and "incredibly anxious" as she had been falsely accused of stealing company property. She said it felt like "a big retaliation" and the claim that her complaint was "frivolous, vexatious and lacking in merit" made her "extremely nervous" and "sick in the stomach". Indeed, she became quite ill, paranoid, and extremely emotional. 419 In cross-examination, however, Ms Taylor accepted that the iPhone 11 was company property. She also accepted that the platinum band was company property, but she said she did not take it when she left on 11 August. 420 Ten days later, on 14 September (which was Ms Taylor's birthday), Beswick Lynch wrote to Maurice Blackburn, pressing its request for the return of "[their] client's property". Ms Taylor believed that the letter was deliberately sent on her birthday in order to upset her and it had that effect.

[72]

The respondents request the return of confidential information (the 19 March letter) 432 On 19 March 2021, after the negotiations had broken down, Beswick Lynch wrote to Maurice Blackburn alleging that Ms Taylor had taken confidential information from Grew & Co. Ms Taylor alleged that, by making those allegations, "Mr Grew subjected [her] to the detriment of insecurity in her employment and being embarrassed, offended, humiliated and/or distressed". 433 The letter read as follows: We are instructed that your client had accessed and copied a number of confidential documents belonging to our clients up to and including during August 2020, when she ceased attending work due to her medical condition. Our clients reasonably believe that those documents remain in your client's possession. They include the 'Engagement Working File'. In circumstances where your client has not attended work for over six months, and is unlikely to be attending work in the foreseeable future, our clients consider that there is no good reason why your client should remain in possession of such documents. As your client remains employed by our clients, we are instructed that Grew & Co directs your client to complete the attached Deed Poll and provide a statutory declaration, to be returned to us by no later than 4:00 pm on Thursday 1 April 2021. Our clients also direct your client to immediately return all documents and confidential information (whether in hard copy or soft copy, however stored) belonging to our clients. Ms Taylor should deliver up to our office the following: a. Hard copy documents; b. USB(s) containing any such documents; c. Soft copy documents; d. Any other confidential information. All copies of the documents held by Ms Taylor which, due to their nature, cannot be returned, must be destroyed or deleted. 434 Maurice Blackburn responded by letter dated 13 April 2021. They informed Beswick Lynch that Ms Taylor was not in possession of any confidential documents belonging to Grew & Co and insisted there was no basis for the asserted "reasonable belief". They also rejected the allegation that Ms Taylor had had any confidential information since August 2020. They went on to say: In this regard, we note that on 21 March 2020 an employee of your client sent a OneDrive link to our client's personal email account, so that our client could perform work on some quotes for client's whilst she was on leave. The link was accessed at that time in the performance of her duties for your client only. Our client no longer has access to this link or the information contained therein. 435 Ms Taylor therefore refused to sign the deed poll but offered a written assurance (expressed as an undertaking) that she had caused any of Grew & Co's confidential information which she had stored electronically to be "permanently deleted", had destroyed any hard copies, and had not disclosed any of that information to anyone not employed by Grew & Co. 436 Mr Grew denied that the allegations in the letter were made because Ms Taylor "was participating in these proceedings". As a matter of fact, this proceeding had not yet commenced. In context, "was participating in these proceedings" must be taken to mean had made a complaint of sexual harassment including to the AHRC. 437 But Mr Grew accepted that the forensic investigation only revealed that two emails had been sent to Ms Taylor's private email address in March 2020 while she was working from home. He said his concerns were raised on 11 August 2020 when she (allegedly) told him: "You owe me. All your best designs are mine and I've made so much money for you". The implication was that he was concerned she would set herself up in competition with Grew & Co. The evidence does not disclose when the forensic investigation was commenced or when it finished, only that it did not take seven months to reveal the two emails. 438 As I mentioned earlier, Ms Taylor tendered her resignation on 6 April 2022. The same day she started looking for other work. In her resignation letter, addressed to Mr Grew, she wrote: As you know, I have been unfit to attend work since 7 August 2020. I am suffering from a persisting psychological injury caused by the sexual harassment that you subjected me to at work. This has had a devastating impact on me. I am no longer the same person. My symptoms have been exacerbated by your threats and tactics in response to my sexual harassment complaint. Grew & Co is an unsafe workplace, and your actions towards me have caused an irretrievable breakdown in the employment relationship. My treating medical practitioners are of the opinion that I cannot return to work at Grew & Co. This has been documented in the Certificates of Capacity that I have submitted since September 2020 in support of my accepted worker's compensation claim, and most recently in my Certificate of Capacity dated 25 March 2022. In the circumstances, I have no option but to resign from my employment with Grew & Co. It is regrettable that I find myself in this situation through no fault of my own. I once viewed my employment with Grew & Co as my dream job. I have now lost that and so much more.

[73]

The issues as defined by the parties 439 In their statement of agreed facts and issues the parties identified the following questions for determination: 43. If the conversation set out at paragraph 33 [the 1 June 2020 conversation] did occur: a. did the work relationship between the Applicant and Respondent deteriorate at that time? b. If yes, was it due to that conversation? 44. Did the Second Respondent's request that the Applicant return the following items have the effect of subjecting the Applicant to the detriment of being embarrassed, offended, humiliated and/or distressed: a. a channel set diamond ring (or its cash equivalent); b. a yellow gold signet ring (or its cash equivalent); c. an iPhone 11 (or its cash equivalent); d. 4 wide silver rings (or their cash equivalent) e. gems, a yellow gold band and a platinum band (or their cash equivalent); and f. a Mociun care guide and polishing cloth. 45. If the answer to the issue at paragraph 44 is "yes", was the Applicant subjected to said detriment on the ground that the Applicant: a. alleged that the Second Respondent had done an act that was unlawful by reason of a provision of Part II of the SD Act; b. proposed to make a complaint under the SD Act or the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act); and/or c. had reasonably asserted or proposed to assert her rights under the SD Act or the AHRC Act. 46. Did the letters sent by Beswick Lynch Lawyers on 15 and 21 October 2020, and/or the purported threat to report the Applicant to the Police as set out in the Response [to the AHRC], have the effect of subjecting the Applicant to the threatened detriment of being charged with a criminal offence and the detriment of being embarrassed, offended, humiliated and/or distressed? 47. If the answer to the issue at paragraph 46 is "yes", was the Applicant subjected to said detriment on the ground that the Applicant: a. alleged that the Second Respondent had done an act that was unlawful by reason of a provision of Part II of the SD Act; b. proposed to make a complaint under the SD Act or the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act); c. had reasonably asserted or proposed to assert her rights under the SD Act or the AHRC Act. d. made a complaint under the SD Act or the ARHC Act; and/or e. reasonably asserted her rights under the SD Act or the AHRC Act. 48. Did the making of purported misconduct allegations against the Applicant, as set out in the letter sent by Beswick Lynch on 19 March 2021 have the effect of subjecting the Applicant to the detriment of insecurity in her employment and being embarrassed, offended, humiliated and/or distressed? 49. If the answer to the issue at paragraph 48 is "yes", was the Applicant subjected to said detriment on the ground that the Applicant: a. alleged that the Second Respondent had done an act that was unlawful by reason of a provision of Part II of the SD Act; b. proposed to make a complaint under the SD Act or the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act); c. had reasonably asserted or proposed to assert her rights under the SD Act or the AHRC Act. d. made a complaint under the SD Act or the ARHC Act; and/or e. reasonably asserted her rights under the SD Act or the AHRC Act. 50. If the answer to the issues at paragraphs 45, 47 and/or 49 is "yes", did the Second Respondent contravene section 94(1) of the SD Act? The reference in issue 46 to two letters was wrong. There was one letter from Beswick Lynch dated 15 October 2020. The letter of 21 October 2020 was from Maurice Blackburn. 440 The first question (issue 43) concerns the conversation in the car on 1 June 2020. Contrary to the view taken by the parties, it is not an issue relevant to the victimisation case. It does not arise on the pleadings and cannot, having regard to the terms of s 94. I deal with the other questions below. The alleged deterioration in the working relationship is relevant to the sexual harassment claim, specifically to the claim for damages. I deal with it in that context.

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The argument 441 Mr Mahendra submitted that the 4 September letter, and the follow-up letter on 14 September, were clearly sent in retaliation for the allegations made in the 28 August letter and that Mr Grew's evidence to the contrary should be rejected. 442 He submitted that Mr Grew's explanation that items were "stock" jewellery that could potentially be sold was "absurd". His demand that the items, or their retail price equivalent (rather than the cost price he would ordinarily charge employees), be returned came at a time when Ms Taylor was still an employee and in circumstances where the only matter that had changed was that Ms Taylor had made an allegation of sexual harassment. The need to sell "stock" items, reuse materials and the iPhone, and "bounce back" from COVID were all facts that existed between 11 August and 28 August 2020 when no demand was made. Mr Mahendra contended that Mr Grew's assertion that he understood Ms Taylor would not be returning to work was entirely inconsistent with the terms of his solicitor's letters. 443 Similarly, Mr Mahendra submitted that the 15 October letter was clearly issued because of the sexual harassment allegations in the 28 August letter and/or the AHRC complaint. Mr Grew's evidence to the contrary, he argued, was "incomprehensible", presumably because Mr Grew conceded that there was no pressing need for the items to be returned, they were of inconsequential value to him, and no steps were taken to seek their return until after the complaint of sexual harassment had been made. 444 Mr Mahendra submitted that the 27 November 2020 response to the AHRC complaint was also an act of retaliation (on the same grounds) and that Mr Grew's evidence about this issue was "entirely incomprehensible". Rather than respond to Ms Taylor's solicitor's request for particulars as to the basis on which he asserted that the items were company property (that he had received over a month earlier), he threatened to report Ms Taylor to the police. 445 Again, Mr Mahendra submitted that Mr Grew's explanations for the claims made in the 19 March 2021 letter (that Ms Taylor had engaged in misconduct and taken confidential information from Grew & Co) were "incomprehensible". Mr Mahendra highlighted the following matters: Ms Taylor had not been at work for seven months; the confidential information about which he was allegedly concerned was approximately 12 months old; Mr Grew claimed to be concerned about it some seven months earlier; and the letter was written after negotiations to resolve the dispute had broken down. Mr Mahendra contended that the sending of the letter was either detrimental conduct to which Mr Grew had subjected Ms Taylor on the ground that she made allegations of sexual harassment and/or lodged the AHRC complaint or an attempt to intimidate her out of pursuing this proceeding. 446 Mr Mahendra submitted that it was clear from the correspondence and its timing that Ms Taylor was subjected to a detriment (and suffered a detriment) on the ground that she had made sexual harassment allegations, lodged an AHRC complaint and/or asserted her rights. The demands for the return of the "gifted" property, the threat to report Ms Taylor to the police and the making of the misconduct allegations threatened the security of her employment, threatened the detriment of being charged with a criminal offence, and exacerbated the psychiatric injury she had already suffered due to Mr Grew's conduct. 447 Ms Bulut submitted that the 4 September letter did not demand the return of any "gifted" property (on the basis that the items sought were not gifted) and urged the Court to accept Mr Grew's evidence that he had formed the view that Ms Taylor was not returning to work, noting that the letter sought confirmation that that was so. She relied on a text message Ms Taylor sent to Ms Vu on 2 September 2020 that stated that she would not be returning to work. She also submitted that the 27 November letter did not subject Ms Taylor to a detriment because it only sought the return of company property on 4 December, three months after the items had first been requested and four months after she had stopped attending work. 448 Finally, Ms Bulut submitted that the 19 March letter did not allege any misconduct and, in any event, Mr Grew only sent the letter in order to protect the company's intellectual property. She noted that it was not in dispute that Ms Taylor had accessed the documents as alleged.

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Findings 449 There was no challenge to Ms Taylor's evidence about the impact on her of the allegations made in the Beswick Lynch correspondence, including the response to the AHRC complaint. Nor was it suggested that I should reject that evidence. I am satisfied that she was giving a genuine account of her feelings at the time. On the basis of that evidence, I find that the request for the return of the property, the accusation of theft and the threat to report her to the police caused her embarrassment, offence, humiliation and distress. I find that that was a detriment within the meaning of that word in s 94. 450 Plainly the letter sent by Beswick Lynch on 15 October 2020, and the threat to report Ms Taylor to the police contained in the response to the AHRC complaint, had the effect of subjecting her to the threatened detriment of being charged with a criminal offence and the detriment of being embarrassed, offended, humiliated and/or distressed. 451 While Ms Taylor admitted in cross-examination that the iPhone and the platinum band belonged to Grew & Co, she was still an employee. She had not resigned and her employment had not been terminated. She was on authorised leave, some which was sick leave and annual leave. There is no good reason to suppose that, if the property in question did in fact belong to Grew & Co, she would not return it once her employment came to an end. There was no apparent urgency for their return. In these circumstances and when her solicitors had requested particulars of the basis upon which the assertion of ownership had been made and none were then provided, I am persuaded that accusing her of theft and threatening to report her to the police was a vindictive act, taken in large part, if not entirely, in retribution for lodging her complaint to the AHRC. 452 I therefore find that Mr Grew subjected Ms Taylor to a detriment through the letter he caused Beswick Lynch to send on 15 October, in his response to the AHRC complaint, namely embarrassment, offence, humiliation and distress. I also find that Mr Grew did so on the ground that Ms Taylor had alleged that he had done acts that are unlawful under Pt II of the SDA, had made a complaint that he had contravened the SDA, and had asserted her right to bring legal proceedings against him under the AHRC Act. 453 It follows that I find that Mr Grew contravened s 94(1). I do so largely for the reasons propounded by Mr Mahendra and also because of the language and tone of the Beswick Lynch correspondence, which is intimidatory and vindictive. 454 While the 19 March letter did allege that Ms Taylor had accessed and copied confidential documents, it did not accuse her of misconduct. It was no more than a request for the return of any confidential documents she may still have in her possession in circumstances where she had been absent from work for over six months and was unlikely to attend work in the foreseeable future. The security of Ms Taylor's employment was not compromised by anything said in the letter. And Ms Taylor gave no oral evidence of her reaction to this letter. Instead, she merely confirmed that the reply from her lawyers accurately reflected her response. Nothing in that document, however, provides any basis for the plea in the amended statement of claim that, by making those allegations, Mr Grew "subjected Ms Taylor to the detriment of … insecurity in her employment; and … being embarrassed, offended, humiliated and/or distressed". Consequently, the claim of victimisation based on these allegations fails.

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The lay evidence 459 I have already referred to the evidence concerning Ms Taylor's reactions to Mr Grew's acts of sexual harassment and victimisation. It is unnecessary to repeat it here. 460 As I mentioned earlier, Ms Taylor resigned from her employment with Grew & Co on 6 April 2022. She testified that she had hoped things would work themselves out and she could return to work but by then she realised that was not going to happen. She said that her mental state at the time, Mr Grew's threats and the way in which he had conducted himself "throughout this whole process", which I take to be a reference to the complaints process, "was too much to deal with". 461 Ms Taylor had applied for a position for another jeweller in the Sydney CBD, but when she went for the job interview in about April or May 2020 which was conducted "in the vicinity" of Grew & Co, she felt "extremely uncomfortable". This experience caused her to worry that, if she were successful, she would bump into Mr Grew or someone else who worked there on a daily basis. She adhered to this evidence in cross-examination and said she would avoid meeting friends in the city for the same reason. I accept her evidence. The prospect obviously troubled her. She broke down in tears as she gave her evidence. 462 Consequently, Ms Taylor and her partner discussed the possibility of moving to another state. By happenstance, she saw an advertisement for a position with a jeweller on the Sunshine Coast, which she answered, and from 20 June 2022 she has been employed there as a sales or client consultant. Initially she worked three days a week and, in time, four. She said she lacks the capacity to work five days because she struggles to remember information she is learning at work and new processes, she finds the environment "triggering", and she tires easily. She is anxious about what suppliers may think of her or say to her, presumably as a result of this litigation. In cross-examination, however, she said that she hoped to return to working five days a week. 463 Ms Taylor lacks the passion, fire and drive she used to have when she was at Grew & Co and feels quite detached from what she is doing at work. She does not care much about what she is doing. She feels she cannot connect to clients and struggles to connect to her co-workers. She broke down when relating this evidence, too. Unlike the job at Grew & Co, her current job is not her "dream job scenario". The pay is lower. She is doing different things and does not enjoy doing them. She still has trouble sleeping although her sleep has improved somewhat since ceasing work for Grew & Co. She also has trouble concentrating at work. Her short-term memory is poor. She has lost confidence and has become socially withdrawn. While she used to enjoy hosting dinner parties, engaging in group exercise, roller skating with friends, and interacting with her family, that was limited "for a while". She dated her loss of confidence to the middle of 2020 and her loss of enjoyment in socialising to the end of 2020. 464 In early 2020 Ms Taylor became more insular, was not confiding in her sister as much as she used to, not participating in social events or seeing her friends as regularly as she had previously and was not exercising as much as she used to. In cross-examination, she was asked to explain why the events of 2019 to 2020 had had a negative impact on her relationship with her sister. This was her unchallenged response: It has made me close up more. I don't express myself as much as I used to with my sister. I'm not as playful and fun when we're hanging out. I'm way more serious. I actually don't even have, like, energy for long conversations with her anymore. I even decline, like, going out to do things with her, because I just am not finding as much enjoyment anymore. 465 Dr Allnutt explained in his oral evidence that: [Ms Taylor was] describing a number of ongoing depressive symptoms that are impacting on her mental state at work. She's describing diminished concentration, I suppose, a degree of apathy towards her work, and lethargy and fatigue, diminished interest, those are all depressive symptoms that are ongoing now. The longer symptoms persist, generally … the worse the prognosis, the longer people are conditioned to resist the word prognosis, but that is in general terms in a population level, can - it varies from individual to individual. So, you know, it has - there appears to have been some recovery in the sense that she has returned to work, but she continues to be compromised in the work that she does. And so - and the symptoms persist, so I - I think the, you know, the prognosis at this stage is guarded. It's difficult to know how she had - where she will go from here. It sounds, to me, like her condition could improve, but it equally could deteriorate. 466 In evidence in chief Ms Taylor acknowledged that the breakdown of her relationship with Brohn had caused her stress or anxiety at the time. In cross-examination she also accepted that COVID-19 lockdowns impacted her ability to socialise. 467 I referred above to the panic attack Ms Taylor experienced on 2 June 2020 after the conversation with Mr Grew in the car outside her home. She has had one or two since then, in late 2020, around the time of the correspondence from Beswick Lynch which she considered to be a "kind of bullying" by Mr Grew. Also, in late 2020 and early 2021 she had "episodes of uncontrolled emotions" and "heavy breathing", albeit not as intense as the earlier ones. After the episode in early 2021 she felt "mentally and physically exhausted" and that feeling was not short-lived. She claimed she felt that toll "continually, even to this day". 468 Ms Taylor's sense of trust has also been affected. When asked how, if at all, her mental health has affected her relationship with her current partner, Chris, she replied: I've definitely had trouble opening up and being as trusting as I normally would. There has obviously been issues to do with my sleep, which leaves me to move to another room to try and sleep so that I don't disturb my partner. Yes, it's - it - there has definitely been times where I've struggled to connect to him and I am very sensitive and emotional and quite irritable, and it has definitely taken a toll on the relationship. 469 Ms Taylor has been having ongoing treatment since she was placed on a mental health plan in June 2020. She sees a psychologist regularly. In 2020 it was weekly, later fortnightly, and at the time of trial it was once every three to four weeks. She attributed the reduction in frequency to cost. She said she cannot afford more than that. 470 In evidence in chief Ms Taylor testified that she had no medical problems before December 2019. In cross-examination her attention was directed to notes from attendances in 2018 upon John Harradine. Mr Harradine is a psychotherapist, not a medical practitioner and Ms Taylor did not consult him about any medical problems. According to the notes, she presented to Mr Harradine on 23 April 2018 because she was "undecided about staying with her boyfriend". On 7 May 2018 the notes record that she was uncertain about him and their distant history and was "emotional about breaking up". 471 In cross-examination Ms Taylor did not agree that she told Mr Harradine that she had "general anxiety" in their session on 5 June 2018 (the notes record that she "acknowledged her general anxiety and the resultant OCD e.g. turning the oven off many times ..."). But she accepted that she may have told him she had anxiety about the situation she was in with her boyfriend at the time and her "OCD tendencies to do with hot surfaces and things like that". She was also taken in cross-examination to isolated parts of the notes from their session on 9 July 2018, namely that she had noticed "some phobic tendencies feeding her anxiety", was "hot tempered", and recognised that "she can catastrophise things eg leaving hair straightener on". Although she did not "entirely" recall discussing these matters with him, she accepted that she must have. The cross-examiner took these matters no further.

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The expert evidence 472 I will not repeat the history given to the psychiatrists. As Dr Parmegiani observed, they obtained a similar history and the history was generally consistent with the evidence. 473 On examination, Dr Allnutt noted that Ms Taylor's affect was flat (something I, myself, observed). She was tearful during the interview and "endorsed several depressive, anxiety and post-traumatic stress symptoms". There was no suicidal ideation, plan or intent, no psychosis, and she had adequate insight and judgment. While she gave a history of concentration problems, otherwise she presented as cognitively "intact". 474 Under the heading "psychological sequelae" Dr Parmegiani recorded that: Ms Taylor began to feel uncomfortable in January 2020, when Mr Grew expressed his feelings for her. Her anxiety increased considerably in June 2020, when she made it clear that she did not want to have a relationship with Mr Grew. Ms Taylor suffered insomnia, palpitations, reduced energy and poor motivation. Her concentration deteriorated, and she withdrew from social activities. 475 Dr Parmegiani also noted that Ms Taylor believes that her reputation had been damaged irreparably and her chances of finding alternative employment in Sydney were severely limited. He mentioned that she told him she felt "hopeless", had "no motivation and zero energy". After moving in with her boyfriend, however, in April 2021, she began exercising again, seeing a personal trainer twice a week, and friends on average once a month. Nevertheless, she continued to suffer insomnia, loss of confidence and low esteem. 476 On examination Dr Parmegiani noted that Ms Taylor was "emotionally labile". He said that she was able to smile at times but became tearful when she spoke about her losses. She resented losing her job and reputation in the jewellery industry and missed her friends and parents. 477 He concluded: If Ms Taylor's version of events is accepted, her presentation is best described as a chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood. Ms Taylor became depressed, anxious, withdrawn and emotionally labile. She suffered insomnia, reduced energy, poor concentration, lack of motivation and social withdrawal. Her appetite decreased and she initially lost a small amount of weight. Legal proceedings perpetuated Ms Taylor's psychiatric symptoms, because they forced her to focus on traumatic incidents. She also grieved the loss of her career and reputation. She moved to Queensland to seek a fresh start, but she missed her friends and her parents. 478 He believed that the resolution of the legal proceedings will have a positive impact on her mental state as she would no longer have to focus on the traumatic events. 479 As a result of the expert conclave, the psychiatrists agreed that Ms Taylor has a psychiatric disorder characterised by anxiety, depression and loss of function. Ultimately there was very little difference between them. 480 Dr Allnutt's preferred diagnosis was that of a Persistent Depressive Disorder for the following reasons: the presence of symptoms for more than two years and their manifestation in sleep disturbance, lack of motivation, fatigue, feelings of hopelessness, diminished enjoyment in things, poor concentration, irritability, some diminished libido. A Persistent Depressive Disorder is a chronic low grade depressive condition which can last over two years. He also considered she had "associated post-traumatic stress symptoms that do not meet full criteria for PTSD such as nightmares, reactivity to unexpected sounds, loss of trust, emotional distancing (these are symptoms that could meet criteria for a chronic adjustment disorder as well), and associated anxiety in that she has episodes of panic". 481 Dr Parmegiani's preferred diagnosis was Adjustment Disorder with Mixed Anxiety and Depressed Mood, although he acknowledged that there is an "overlap" between Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood and Persistent Depressive Disorder. He relied on the fact that Ms Taylor was able to form and sustain a new relationship in 2020 which was continuing and had recently moved to Queensland, was able to start a graduated return to work program, and was seeing friends on average once a month. 482 Dr Allnutt also acknowledged the overlap between the two disorders. He said the symptoms of each were almost identical and the difference was merely "a matter of semantics". 483 If Ms Taylor's account is accepted, then the experts agreed that the events in question "substantially contributed" to her condition. Similarly, accepting her account of events, they agreed that the alleged acts of victimisation exacerbated or aggravated Ms Taylor's psychiatric injury. They felt her prognosis was "guardedly positive for the foreseeable future". 484 As to incapacity for work, they considered that, having regard to her return to the workforce in Queensland, she was "not incapacitated" for work as a jeweller in an alternative geographical environment where her reputation is relatively intact but her capacity for work in Sydney is "undermined" as it is "an environment where she believes her reputation has been damaged irreparably". 485 In the absence of any challenge to Ms Taylor's evidence about her current functioning and performance at work and any suggestion that the legal proceedings had affected her psychological state, Dr Parmegiani agreed with Dr Allnutt that the longer the current situation continues the harder it will be for her to return to her pre-injury level. Nevertheless, Dr Parmegiani was firmly of the view that Ms Taylor would improve significantly within weeks of the conclusion of the legal proceedings and as she re-establishes her career. Indeed, the psychiatrists agreed that, if Ms Taylor were successful, that would have an ameliorative effect on her condition, although Dr Allnutt was more cautious in his optimism. 486 The psychiatrists' opinions were not only dependent on what Ms Taylor told them. They also relied on their clinical assessments. As Dr Parmegiani explained: [I]n terms of assessments, my assessment of her presentation was consistent with my diagnosis of adjustment disorder with mixed anxiety and depressed mood. I base my diagnosis on the history that she reports with the subjective ones, but also two other things. One of them is that her presentation, her emotional expression, emotional ability, but thirdly, her level of function. Because we know that when people are depressed, depending on the degree of the depression, their lifestyle reflects that. And people who are very depressed at, you know, one extreme don't get out of bed in the morning. They spend a whole day in bed with no energy, no motivation, don't want to have any relationships. Sometimes they - they don't eat, can't sleep. That's an extreme end. And somewhere between what's a normal emotional response and that extreme, we reach diagnostic significance for a psychiatric disorder. We say, well, that's clearly not normal. There's some more to it than just a normal emotional response to a distressing event. 487 An attempt was made in cross-examination to discredit Dr Allnutt's opinion by reference to records which he did not recall seeing. As will be seen, however, the cross-examination was unrewarding.

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Findings 488 I find that Ms Taylor first experienced anxiety following, and as a result of, the initial unwelcome sexual advance on 6 January 2020. I accept that there was a deterioration in the relationship between Ms Taylor and Mr Grew after the conversation on 1 June 2020, and in her mental health. As Dr Parmegiani wrote in his report, the anxiety Ms Taylor first experienced after their conversation on 6 January 2020 escalated after she rebuffed him again on 1 June 2020. I also accept Dr Parmegiani's opinion that her insomnia, reduced energy and poor concentration affected her work performance in July 2020 and that her symptoms became disabling over the next couple of years. 489 To the extent that they differ, I prefer the opinion of Dr Parmegiani over that of Dr Allnutt. I take into account that Dr Parmegiani had the benefit of a more complete history than Dr Allnutt at the time he prepared his report and, unlike Dr Allnutt, had the benefit of reviewing Ms Taylor after she returned to work. It is unnecessary to choose between the two diagnoses since I am not treating her and the difference is only a semantic one. 490 It is necessary now to determine whether the loss and damage Ms Taylor claims were caused by the respondents' conduct. The respondents submitted that there is "simply no evidence to support that". They contended that Mr Taylor did not become incapacitated and was not diagnosed with any medical condition until after she left work on 11 August 2020, more than two months after the 1 June 2020 conversation, and the event which immediately precipitated that was her receipt of Mr Grew's text message of 7 August 2020. They claimed there had been no deterioration in the working relationship after 1 June 2020. They also submitted that Dr Allnutt did not have regard to any of Ms Taylor's medical history, which he conceded might have been relevant, and relied instead on Ms Taylor's statement that before the events in question "she was unaware of any symptoms of sustained feelings of depression or anxiety". 491 While there is no doubt that Ms Taylor was offended by Mr Grew's 7 August text message, I reject the suggestion that Ms Taylor's psychiatric disorder was caused by it. At best for the respondents it was the straw that broke the camel's back, so to speak. The evidence persuades me that the principal, if not only, cause was the sexual harassment, especially the unwelcome advance to her on 1 June 2020. It upset her greatly and within two weeks of it the dynamics of their relationship had admittedly changed for the worse. There is no rational explanation for Ms Taylor's behaviour on 2 June other than that it was a response to Mr Grew's conduct the evening before. I am not persuaded that she recovered. In all likelihood, she had been managing the situation as best she could until she read the 7 August text. By then she decided she could not continue. I also have no doubt that her condition was aggravated or exacerbated by Mr Grew's intemperate reaction to her complaint, as evidenced in the correspondence from Beswick Lynch and the response to the AHRC. 492 As I have said, the history Ms Taylor gave to the psychiatrists is substantially consistent with her account to the Court. They were told about the 7 August text but neither of them placed any significance on it and the subject was not raised with them in oral evidence. I was not taken to anything in the medical history to indicate that before June 2020 Ms Taylor had a psychiatric disorder and there was no such evidence. Certainly, I was not taken to any evidence that she had previously seen or been referred to a psychiatrist. While she had seen a "psychologist" and "psychotherapist" previously, she was open about that, including with Dr Allnutt and Dr Parmegiani. 493 In cross-examination Ms Bulut drew Dr Allnutt's attention to the handwritten notes of Mr Harradine, who was said to be a psychologist but is not registered as such. Rather, as Dr Parmegiani pointed out, he is a registered counsellor. Ms Bulut also drew Dr Allnutt's attention to references in a GP's records for a consultation with Ms Taylor on 27 September 2019 to "feeling tired - wakes 'exhausted' - for months" and that a blood test carried out on 1 October 2019 recorded that she had low iron. Dr Allnutt acknowledged that all psychiatric information would be relevant. It is questionable, to say the least, whether this material could fairly be characterised as "psychiatric information". In any event, the respondents did not use the information to invite Dr Allnutt to offer an alternative explanation or cause for the symptoms with which she presented and exhibited to him. It was merely put to Dr Allnutt that it was possible that information "may have impacted" the answers he gave in his report to the questions asked of him, the diagnosis or the prognosis. 494 Dr Allnutt testified that it was hard to proffer an opinion based on snippets of handwritten notes, some of which are difficult to decipher, either because the handwriting was hard to read or the notes were abbreviated. He said that he was aware that Ms Taylor had previously seen a psychologist. He said it was possible there had been "a pre-existing condition, either obsessive-compulsive personality disorder or obsessive compulsive personality traits or a pre-existing predisposition to anxiety" but it was difficult to give a definitive opinion. Importantly, the doctor was not invited to assume any of those alternatives and then asked what difference, if any, it would have made to his opinion. 495 Some of the material Dr Allnutt had not previously seen was provided to Dr Parmegiani and was annexed to his report. It is apparent that he did not regard it as significant. He testified: Look, I agree with Dr Allnutt that Ms Taylor probably had a - a higher degree of anxiety than the average person before the alleged incidents, but at the same time I observe that my focus, generally, is on level of function, and there did not appear to be significant impairment of function in terms of working full time, relationships. We know she is exercising regularly, socialising. So if there was a degree of anxiety, and these notes would suggest that there was, then it didn't have a significant impact on her daily activities. 496 Dr Parmegiani said he would take the note about OCD with "a pinch of salt". He said he was not satisfied from the notes or his interview that there was any significant impairment of her daily activities as a result of anxiety before the alleged injury in the course of her employment with Grew & Co. 497 I accept this evidence. The evidence as a whole indicates that Ms Taylor is sensitive and has a predisposition to anxiety which made her vulnerable or susceptible to a condition of the kind the psychiatrists diagnosed. That was apparent to Mr Grew himself. But the respondents have to take her as they found her "with all [her] weaknesses, beliefs and reactions as well as [her] capacities and attributes, physical, social and economic": Nader v Urban Transit Authority of New South Wales (1985) 2 NSWLR 501 at 537 (McHugh JA, with whom Samuels JA agreed). It is also apparent that she functioned well for the first two years of her employment. 498 Notably neither of the psychiatrists suggested Ms Taylor exhibited abnormal illness behaviour, sick role or malingering or embellishment of symptoms for secondary gain. Dr Graham George, a psychiatrist who examined Ms Taylor on 18 November 2020 for Grew & Co's workers' compensation insurer, whose report was provided to Dr Parmegiani and Dr Allnutt and was annexed to Dr Parmegiani's report, was specifically asked whether there was any indication of such behaviour. He found none on his examination. 499 I think it is likely that, from time to time at least, after the disclosure in January 2020 Ms Taylor experienced some anxiety about her relationship with Mr Grew and her job security but that, more likely than not, there was no psychiatric disorder as such before her breakdown on 2 June 2020. There is no evidence of a pre-existing psychiatric injury. The psychiatrists were unanimous that, in the absence of any evidence of dysfunction before the alleged injury she had while working for Grew & Co, it would be difficult to reach a diagnosis of any pre-existing psychiatric disorder. 500 Both the experts were cautiously optimistic about Ms Taylor's prognosis and were encouraged by Ms Taylor's increase in working hours, particularly as it occurred in the context of the proceeding.

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General damages 501 Ms Taylor claimed $250,000 for general damages and an additional sum of $50,000 for the aggravation of her psychiatric condition based on the acts of victimisation. She referred to the judgment in Richardson v Oracle Corporation Australia Pty Ltd (2014) 223 FCR 334 in which the Full Court (Kenny, Besanko and Perram JJ) determined that $100,000 was an appropriate sum for general damages for a woman who had been sexually harassed at work and who had also been diagnosed with an adjustment disorder with mixed anxiety and depressed mood. That award was substantially greater than most previous awards for sexual harassment. Kenny J observed at [95] that, "in making an award, a court necessarily has regard to the general standards prevailing in the community". 502 Ms Taylor argued that times have changed. She submitted that, since Richardson, there has been "a further significant and fundamental shift in community standards and a much deeper appreciation in the community of the hurt and humiliation that victims of sexual harassment experience and the value of loss of enjoyment of life occasioned by mental illness or distress caused by such conduct". She relied on a report of Sara Charlesworth, Professor of Gender, Work & Regulation at RMIT University in Melbourne. Prof Charlesworth has a PhD in legal studies from La Trobe University, a graduate diploma of government law, a BA (Hons) in political science and a diploma of social studies (social work) from the University of Melbourne. She has conducted extensive research into gender relations in the workplace for over 20 years. She is the co-author of the submission to the National Inquiry into Sexual Harassment in Australian Workplaces conducted by the AHRC, to which I referred earlier. Prof Charlesworth's report (including the annexure) was admitted without objection and she was not required for cross-examination. 503 In their submission, McDonald and Charlesworth made the following observations: Sexual harassment is problematic in a unique and corrosive way in that it strips away an individual's identity, reduces the quality of working life, creates barriers to full and equal participation in employment across the life course and imposes costs on organisations. Experiencing sexual harassment often represents a turning point in the lives of workers, altering their progression through life-course sequences and hindering positive career and personal outcomes. 504 In her report, Prof Charlesworth expressed the opinion that over the last five years in particular workplace sexual harassment has become a matter of broad community concern and interest and that, with increasing community awareness, a deeper appreciation has developed of the nature and impact of sexual harassment and a greater community intolerance for it. She said that the increasing community intolerance was reflected in the policies and promises made by both major parties during the last federal election campaign and evident in general media reporting over the last decade. She concluded that there has been "a profound shift in the community and political understanding of the nature of sexual harassment". She also considered that a range of social, political, economic and legal developments and the profile given to them in the media with personal stories, particularly of high profile victims, has increased community awareness of the consequences of sexual harassment. She said that was reflected in the attention paid by the media and politicians to the 2020 Respect@Work Report, which documented a range of consequences for victims of sexual harassment including negative effects on health and wellbeing; negative impacts on employment and career development; and significant financial consequences. She noted in particular a statement by the Champions of Change Coalition (formerly the Male Champions of Change) that: Sexual harassment causes harm. It is significant and can be felt immediately, emerge over time and/or result in long-term trauma. The impacts are personal, varied and deeply affecting. The evidence of harms such as anxiety, depression, stress, relationship breakdowns, physical ailments, career consequences and financial loss caused by sexual harassment are all well-documented. The harm also extends to families, people who witness incidents and people within and outside of organisations who have to support those impacted, respond to or manage the behaviour. 505 Prof Charlesworth was asked to review awards for general damages made by courts since Richardson to see whether those awards reflected the shift in community standards and "the higher value the community places on the loss of enjoyment of life, emotional loss, and pain and suffering that victims of sexual harassment may experience". Prof Charlesworth did not confine her review to court awards, presumably because there were so few. She also examined tribunal decisions. And she only reviewed decisions in the period between 2020 and 2022 of which there were three court awards: $70,000 in Vitality Works; $25,000 in Higgins v Orchard [2021] TASFC 12; [2021] EOC ¶93-946; and $120,000 in Hughes v Hill. She concluded: The scarcity of sexual harassment decisions in Australia, when combined with decisions being made across potentially nine different state, territory and federal jurisdictions, makes it hard to identify trends or make any definitive conclusion about the extent to which awards of general damages in more recent Australian court and tribunal decisions reflect a shift in community standards and the higher value the community places on the consequences for victims. 506 Mr Mahendra referred to none of these judgments in this context. Rather, he contended that, in contrast to awards of general damages in personal injury and defamation cases, awards of general damages to victims of sexual harassment have barely changed since Richardson. His contention was based on an extremely selective sample: two personal injury cases from the Victorian Supreme Court (Mathews v Winslow Constructors (Vic) Pty Ltd [2015] VSC 728 and Wearne v State of Victoria [2017] VSC 25; 268 IR 401 and Nationwide News Pty Ltd v Rush [2020] FCAFC 115; 380 ALR 432 in which an award of $850,000 was upheld. 507 Mr Mahendra submitted that in Rush the Court was only dealing with damage to a man's reputation. He asked rhetorically why should a man who has been defamed by allegations that he sexually harassed someone receive a sum of money that is five to 10 times greater than the highest awards for general damages awarded to victims of sexual harassment? 508 I find this submission unhelpful. 509 First, it belies a lack of understanding of the assessment of non-economic loss in defamation. Such an award serves three overlapping purposes of which recompense for the harm done to reputation is but one. The other two are consolation for the personal distress and hurt caused to the applicant by the publication and vindication. At the very least the amount awarded must be the minimum necessary to signal to the public the vindication of the applicant's reputation and the gravity of the libel and the social standing of the parties are relevant considerations, as is the mode and extent of the publication, the failure to apologise or retract the defamatory statements. See Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 60-61 (Mason CJ, Deane, Dawson and Gaudron JJ) and Herald and Weekly Times Ltd v McGregor (1928) 41 CLR 254 at 262-263 (Knox CJ, Gavan Duffy and Starke JJ); 265 (Isaacs J). Rightly or wrongly, the law places a high value on reputation and the level of damages is supposed to reflect that: John Fairfax Publications Pty Ltd v O'Shane (No 2) [2005] NSWCA 291 at [3] (Giles AJA), Ipp AJA agreeing at [14]. 510 Kenny J expressed a similar opinion in Richardson at [112] in response to a similar submission. 511 Second, the large figure awarded to Mr Rush reflected his high reputation not only in Australia but throughout the world; the fact that the defamatory publications had the effect of "destroying" his reputation; the "very significant" extent of publication; and the "devastating" impact of the publications on Mr Rush (which had deeply hurt and traumatised him). It also included a component for aggravated damages. 512 Mathews concerned a woman who was subjected to abuse, bullying and sexual harassment from multiple employees and subcontractors on building sites throughout her two years of employment with the defendant company. The abuse was vile and threatening. The trial judge found that Ms Mathews sustained "very considerable psychiatric injuries as a direct result of [that conduct]" which "have and will continue to diminish the quality of her life". He awarded her $380,000 in general damages. 513 Ms Mathews was referred to a psychiatrist who initially diagnosed her with a major depressive disorder, a significant and chronic post-traumatic stress disorder which had neither resolved nor improved since she left work despite psychotherapy and prescription medication. She was later admitted to hospital where she received six treatments of electroconvulsive therapy and "maintenance treatment" on four subsequent occasions after which she was diagnosed with bipolar II disorder induced by ECT. The evidence was that the post-traumatic stress disorder was "stable but chronic", "permanently disabling", and "unlikely remit significantly". Ms Mathews also developed temporomandibular joint dysfunction, which caused her ongoing pain and severe limitation in her capacity to chew and enjoy many foods, as a result of grinding her teeth related to her psychiatric illness. The trial judge found that she had had "no work capacity" since leaving the employ of the defendant and would never work again (at [41]). 514 It is obvious that this case is not remotely comparable. 515 Wearne concerned a claim of bullying and harassment of an employee with a "pre-existing psychological fragility" and "a susceptibility to suffer psychiatric harm" (at [2]). She ceased work on 7 November 2008, at the age of 54, when she suffered "a breakdown" and had not undertaken any paid employment since (at [3]). 516 Dixon J awarded Ms Wearne $210,000 in general damages. 517 His Honour was satisfied that Ms Wearne suffered from an exacerbation of a pre-existing psychological injury, namely, chronic adjustment disorder with mixed anxiety and depressed mood (at [347]). Although it is not entirely clear from the reasons, he seems to have accepted that she had developed a major depressive disorder, which was moderately severe, but had improved after a change in antidepressants (see [347]-[350]). He found that Ms Wearne suffered anxiety and depressed mood with specific features of melancholia, required significant medication, was unable to work, suffered "significant loss of enjoyment in her lifestyle", and was fixated on the way she was treated by her supervisor such that she "avoids supervision and hierarchical structures" and has limited dealing with others (at [365]). His Honour was satisfied that her prognosis was "guarded and poor" and there was "very little chance of any material improvement". He also found that she had been incapable of working at all in the nearly nine years since she had ceased working for the State and would remain wholly incapacitated (at [382]). 518 The present case is different from this, too. 519 In the present case, Mr Mahendra submitted that an award of $250,000 was in keeping with community standards and properly reflects "the significant and fundamental shift in community standards" since Richardson was decided in 2014. 520 I have real difficulty with this submission. The purpose of damages is to compensate the applicant for the harm caused to her by the sexual harassment she suffered, not to reflect the community's appreciation of the extent of harm that can be occasioned by sexual harassment. 521 In determining an appropriate award in the present case, I take into account the following matters. Ms Taylor is a young woman who has developed a chronic psychiatric disorder caused by the respondents' conduct. As a result, she has experienced depression and anxiety, disturbed sleep, reduced energy, poor concentration, lack of motivation, loss of appetite and a reduction in social contact. She also grieves the loss of her career and the damage she perceives has been done to her reputation. On the other hand, she has improved. She appears to be in a stable and supportive relationship with her partner and she has returned to the workforce. She is obviously a talented and resourceful woman. In my opinion, her condition is likely to continue to improve with the assistance of psychological care once this proceeding concludes. 522 In view of the effect on Ms Taylor and the prognosis of the psychiatrists, I consider that an award of $250,000 in general damages for the sexual harassment and an additional $50,000 for the victimisation would be manifestly excessive. It would not be compensatory but punitive. I would award Ms Taylor $140,000 for the sexual harassment and $40,000 for the victimisation.

[83]

Aggravated damages 523 Aggravated damages are compensatory (rather than punitive) in nature, "awarded for injury to [an applicant's] feelings caused by insult, humiliation and the like": Lamb v Cotogno (1987) 164 CLR 1 at 8 (Mason CJ, Brennan, Deane, Dawson, Gaudron JJ). 524 Where appropriate, aggravated damages may be awarded as "[a]dditional compensation for the injured feelings of [an applicant] where [the applicant's] sense of injury resulting from the wrongful physical act is justifiably heightened by the manner in which or the motive for which the [respondent] did it": Cassell & Co Ltd v Broome [1972] AC 1027 at 1124 per Lord Diplock. But aggravated damages many also be awarded to an applicant whose distress is made worse by the respondents' conduct after the wrongful act or acts are committed: Triggell v Pheeney (1951) 82 CLR 497 at 514 (Dixon, Williams, Webb and Kitto JJ). That includes the conduct of the defence but is not limited to the conduct of the defence. 525 Aggravated damages can only be awarded, however, if the conduct of the respondents was improper, unjustifiable or lacking in bona fides: Triggell v Pheeney at 514. The mere persistence, even if vigorous, in a bona fide defence in the absence of improper or unjustifiable conduct is not enough: Coyne v Citizen Finance Limited (1991) 172 CLR 211 at 237 (Toohey J, with whom Dawson J and McHugh J agreed at 222 and 239 respectively). 526 There is no dispute that aggravated damages may be awarded in a case of this nature. It is well established that s 46PO(4) empowers the Court to award aggravated damages in an appropriate case, whether as a separate sum or otherwise: see, for example, Hall v Sheiban at 239-240 (Lockhart J) and 282 (French J); Ewin v Vergara at [676] (Bromberg J). In Hughes v Hill the Full Court upheld an award of $50,000 for aggravated damages based on threats made by the appellant to the respondent to prevent her from making a complaint about his sexual harassment and the manner in which he conducted the trial. 527 In the amended statement of claim Ms Taylor pleaded that aggravated damages should be awarded because of the respondents' contraventions of the SDA. 528 The pleaded case on aggravated damages based on the conduct itself was effectively abandoned. It featured in none of the submissions. In those circumstances it may be taken not to have been pressed. 529 In closing submissions Mr Mahendra submitted that aggravated damages should be awarded because of the conduct of the defence, including the defence itself, that is the respondents' pleading; the threatened costs application against Maurice Blackburn; and the matters set out in the AHRC response. He argued that this conduct amounted to "victim-blaming and shaming, intimidatory tactics designed to dissuade Ms Taylor from pursuing her complaint and legal rights". Mr Mahendra described the conduct of the defence as "appalling, unjustifiable and improper". He referred, in particular, to Mr Grew's denials that the gifts were unsolicited; and the allegations in the AHRC response that, since Mr Grew separated from his wife, "Ms Taylor [repeatedly] behaved in a flirtatious manner and often tried to instigate physical contact with Mr Grew", providing as an "example" of such behaviour "touching his shoulder and squeezing his arm to get his attention". 530 To the extent that the submissions cut across the victimisation claim, I reject them. They invite the Court to award damages twice for the same loss. That is impermissible, if not unconscionable. In oral argument, Mr Mahendra accepted as much. 531 The respondents argued that no award should be made. In their closing submissions they pointed to the narrow basis for the claim as pleaded and opposed the expansion of the claim beyond the pleading. 532 I reject the argument. 533 First, the respondents' submissions assume that it was necessary to plead the additional matters. While it might have been desirable, I am not satisfied it was necessary. Ms Taylor was required to plead the material facts on which she relied but not the evidence by which those facts were to be proved: Federal Court Rules 2011 (Cth), r 16.02(1)(d). The matters to which objection was taken are not material facts. A material fact is a fact which is necessary to formulate a complete cause of action; particulars are not material facts: Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd (1991) 217 ALR 171 at 173 (French J). While the Rules require a party who claims exemplary damages to state in the pleading particulars of the facts on which the claim is based (r 16.44), there is no equivalent requirement in relation to aggravated damages. 534 In any case, pleadings are only a means to an end, not an end in itself: Betfair Pty Ltd v Racing New South Wales (2010) 189 FCR 356 at [52] (Keane CJ, Lander and Buchanan JJ). A hearing that departs from the pleadings is not necessarily unfair: Garner v Central Innovation Pty Limited [2022] FCAFC 64 at [70] (Charlesworth, Stewart and Halley JJ). "[M]ere infelicity of drafting will rarely be allowed to defeat a case on its merits if the merits of the case have been made apparent on the evidence without unfairness to the other party": Betfair at [55]. "[M]odern pleadings have never imposed so rigid a framework that if evidence which raises fresh issues is admitted without objection at trial, the case is to be decided upon a basis which does not embrace the real controversy between the parties … cases are determined on the evidence, not the pleadings": Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd (1990) 169 CLR 279 at 296-297 (Dawson J), cited with approval in Vale v Sutherland (2009) 237 CLR 638 at [41] (Gummow, Hayne, Heydon, Crennan and Kiefel JJ). The overriding consideration is whether the opposing party knows the nature of the case they have to meet: Australian Securities and Investments Commission v GetSwift Ltd (Liability Hearing) [2021] FCA 1384 at [85] (Lee J). 535 Here, the claim made in closing submissions could not have come as a surprise to the respondents. As early as October 2020 Ms Taylor's lawyers effectively foreshadowed a claim for aggravated damages "based on the aggravating and intimidating conduct of the respondents in their response and defence". In his written opening, Mr Mahendra contended that an award of $50,000 in aggravated damages was appropriate "having regard to [Ms Taylor's] treatment following her foreshadowing and then lodging her complaint with the AHRC together with the manner in which the respondents have conducted their defence". With respect to the latter, Mr Mahendra reserved the right to make submissions at the conclusion of the hearing regarding the conduct of the respondents during the litigation. No objection was taken to this course at the time. In their written opening the respondents merely asserted, in effect, that the evidence did not support a claim for aggravated damages ("on no view is Ms Taylor entitled to aggravated damages on the evidence before the Court"). Nor was objection taken to cross-examination of Mr Grew about these matters. 536 There was, however, a lack of rigor and clarity in the way the aggravated damages claim was put. 537 In his oral opening Mr Mahendra formulated the claim for aggravated damages as an alternative to the victimisation claim. Mr Mahendra referred to the demands for the return of the property, the assertions that Ms Taylor's claim was vexatious or frivolous, and the threat of personal costs orders. The demands for the return of the property were clearly covered by the victimisation claim. But the last two matters were not. There is no reason why they may not be relied upon as aggravating conduct. 538 The solicitors' correspondence that followed the notification of the claim by Maurice Blackburn in August 2020 was not merely a rebuttal of Ms Taylor's claim, it was also an attack on her character. As I have already mentioned, in the 4 September letter Ms Taylor was said to have "manipulated Mr Grew during the course of her employment" and "[taken] advantage of their relationship for pecuniary gain", neither of which was put to her in cross-examination. Ms Taylor testified that the description of her claim as "frivolous, vexatious and lacking in merit" made her feel sick in the stomach. The threat of a costs order against her lawyers personally was unjustifiable and the respondents made no attempt to justify it. The description of Ms Taylor's case as "frivolous, vexatious and lacking in merit" was unwarranted and, coupled with the threat of a costs order against her lawyers, was intimidatory. Their assertion in her response to the AHRC complaint that Ms Taylor repeatedly acted in a flirtatious way towards Mr Grew was not supported by the evidence. 539 I would award $15,000 in aggravated damages. In doing so, I make no allowance for the conduct of the defence of the proceeding. 540 The respondents' defence of the proceeding was described by counsel in written submissions as "appalling, unjustifiable and improper". Reference was made to the denials that several of the gifts were "unsolicited", when the evidence indicated otherwise and it was never put to Ms Taylor that she had solicited them, "presumably because there was no evidentiary basis to do so". While this conduct was imprudent, perhaps foolish, I do not think it was improper, unjustifiable or lacking in bona fides.

[84]

Out-of-pocket expenses 541 The only claim for past out-of-pocket expenses is for $878.80 in psychologist fees. The respondents agreed that the amount has been incurred. Dr Allnutt considered that the treatment she has received has been reasonable and necessary. Dr Parmegiani did not suggest otherwise. I am satisfied that the need for the treatment arises from the unwelcome sexual conduct and the acts of victimisation. I am also satisfied that Ms Taylor requires some continuing treatment for a period of time. But what kind of treatment and for how long? 542 The claim for future out-of-pocket expenses, as ultimately put in Ms Taylor's Further Statement of Particulars, is purportedly based on the opinion of Dr Allnutt. The contention is that Ms Taylor will incur the following expenses: a. Future monthly attendances upon general practitioners, at a cost of $45.00 per attendance for a period of 12 months totalling $540. b. Future bi-weekly attendances upon a psychologist, at a cost of $74.50 per attendance after the Medicare rebate is applied, for a period of 12 months, totalling $1,788. c. Future monthly attendances upon a psychiatrist at a cost of $300 per hour for a period of 12 months totalling $3,600.00. d. Antidepressant medication at a cost of $30 to $60 per month for a period of 12 months totalling $360 to $720. 543 The respondents quarrel with the first item on the ground that it is not included in Dr Allnutt's report. The second and third items are disputed only as to extent. As to the fourth, the respondents pointed out that the period recommended by Dr Allnutt was not 12 months, but six to 12 months, and therefore an amount in the range of $180-$720 is appropriate. 544 I accept the claim for psychological consultations but not the extent of them. Dr Allnutt did not recommended bi-weekly consultations for 12 months. He "envisage[d] weekly to 2 weekly [which I take to mean fortnightly] consultations over a period of 6 to 12 [months] or longer depending on clinical response". 545 While Dr Allnutt did not mention monthly attendances on general practitioners, he did say that Ms Taylor's "general practitioner needs to continue to monitor her physical and mental state and undertake the usual investigations to rule out underlying medical causes of anxiety and depression". It is appropriate to make an allowance for this. 546 But I am dubious about whether Ms Taylor is likely to avail herself of psychiatric assistance. In cross-examination she expressed a preference for psychologists over psychiatrists and said she would be guided by her psychologist. She understood that Dr Allnutt had recommended psychiatric treatment and said she would "definitely look into" it. In the circumstances, I am only prepared to award an amount for the chance that she would undergo psychiatric treatment, even if it were recommended, which I assess at less than 50%. 547 Dr Parmegiani thought medication was not a priority if his diagnosis was the correct one. He considered she would likely heal in time with psychological therapy. Ms Taylor also expressed reluctance to take antidepressants and told the Court she was reluctant to do so. I would therefore make no allowance for them. 548 Taking all these matters into account, I would award a total of $3,000 for future out-of-pocket expenses.

[85]

Past economic loss 549 The claim for past economic loss, as particularised in the Further Statement of Particulars, is for loss of income from 10 August 2020 to 25 September 2022. The amount claimed is $8,700.64. It is said to be calculated on the difference between the net amount Ms Taylor would have been earning had she remained in the employ of Grew & Co during that period, based on the net amount she was paid per week when she last worked there ($1,309.84) (amounting to $145,392.24), and the net amount she earned in income during that period (said to be $136,691.60). 550 An amount of $14,370 is claimed for the lost value of employer superannuation contributions over the period. There is no dispute as to the amount. 551 The remaining question is whether Ms Taylor was incapacitated for work during the period in question as a result of her psychiatric disorder. Based on the psychiatric evidence, I am satisfied that she was. Consequently, she should receive the agreed amounts. I see no reason to discount them. It was no part of the respondents' defence that Ms Taylor failed to mitigate her loss. 552 It was apparently common ground that Ms Taylor will not be required to repay workers' compensation benefits so no allowance needs to be made in accordance with Fox v Wood (1981) 148 CLR 438. In any event no such claim was made. 553 A claim was also made for $18,298.12 for annual leave accessed after 11 August 2020 that Ms Taylor would not otherwise have taken. The contention was that, but for her injuries, Ms Taylor would have retained her annual leave entitlements and been entitled to receive a payment of her accrued but untaken annual leave when her employment ended. I reject the claim. It was common ground that Ms Taylor was paid all her annual leave entitlements. The claim is based on the assumption that, if she had continued to work, she would not have taken all her annual leave. Even if such a loss sounds in damages, the evidence is insufficient to support the assumption on which the claim is based. Ms Taylor was not asked a single question on the subject.

Parties

Applicant/Plaintiff:

Taylor

Respondent/Defendant:

August and Pemberton Pty Ltd

Legislation Cited (9)

Equal Opportunity Act 1984(Vic)

Sex Discrimination Act 1984(Cth)ss 28A, 28B, 94, 106

Acts Interpretation Act 1901(Cth)s 2C

Australian Human Rights Commission Act 1986(Cth)ss 46PH(1B)(b), 46PO(4)

Evidence Act 1995(Cth)s 140

Federal Court Rules 2011(Cth)

Anti-Discrimination Act 1977(NSW)s 28A

Criminal Procedure Act 1986(NSW)s 294

Disability Discrimination Act 1992(Cth)

Cases Cited (36)

n Sàrl [2019] FCA 1905 Herald and Weekly Times Ltd v McGregor (1928) 41 CLR 254 Higgins v Orchard [2021] TASFC 12; [2021] EOC ¶93-946 Hughes (t/as Beesley and Hughes Lawyers) v Hill (2020) 277 FCR 511 John Fairfax Publications Pty Ltd v O'Shane (No 2) [2005] NSWCA 291 Jones v Dunkel (1959) 101 CLR 298 Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd (1991) 217 ALR 171 Kraus v Menzie [2012] FCA 3 Lamb v Cotogno (1987) 164 CLR 1 Leslie v Graham [2002] FCA 32 Mathews v Winslow Constructors (Vic) Pty Ltd [2015] VSC 728 Ministry of Defence v Jeremiah [1980] QB 87 Nader v Urban Transit Authority of New South Wales (1985) 2 NSWLR 501 Nationwide News Pty Ltd v Rush [2020] FCAFC 115; 380 ALR 432 O'Callaghan v Loder (1983) 3 NSWLR 89 Penhall-Jones v State of NSW [2007] FCA 925 Poniatowska v Hickinbotham [2009] FCA 680 Richardson v Oracle Corporation Australia Pty Ltd (2014) 223 FCR 334 Spencer v Dowling [1997] 2 VR 127 Triggell v Pheeney (1951) 82 CLR 497 Vale v Sutherland (2009) 237 CLR 638 Vergara v Ewin (2014) 223 FCR 151 Vitality Works Australia Pty Ltd v Yelda (No 2) (2021) 105 NSWLR 403 Walker v State of Victoria [2012] FCAFC 38 Wearne v State of Victoria [2017] VSC 25; 268 IR 401 Dorne Boniface, The Common Sense of Jurors vs The Wisdom of the Law: Judicial Directions and Warnings in Sexual Assault Trials [2005] UNSWLawJ 261

[2021] TASFC 12

[2015] VSC 728

[2017] VSC 25

Cited By (4)

Fair Work Ombudsman v Foot & Thai Massage Pty Ltd

Taylor v August and Pemberton Pty Ltd

Tickle v Giggle for Girls Pty Ltd

Whelan v Oldfield Entertainment Pty Ltd