Wiggins v Department of Defence - Navy [2006] FMCA 800

"(4) If the court concerned is satisfied that there has been unlawful discrimination by any Respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:

(a) an order declaring that the Respondent has committed unlawful discrimination and directing the Respondent not to repeat or continue such unlawful discrimination;

(b) an order requiring a Respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an Applicant;

(c) an order requiring a Respondent to employ or re-employ an Applicant;

(d) an order requiring a Respondent to pay to an Applicant damages by way of compensation for any loss or damage suffered because of the conduct of the Respondent;

(e) an order requiring a Respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an Applicant;

(f) an order declaring that it would be inappropriate for any further action to be taken in the matter."

Unless otherwise stated the following background facts are findings of the Court. The Applicant is 30 years of age and was born in March 1976. The Applicant joined the Navy as a midshipman on 17 January 1994. She commenced training with the Australian Defence Force Academy and graduated in 1996. On 1 January 2000 she was promoted to the rank of lieutenant in the Navy. The Applicant qualified as a seaman officer (A1) and intercept controller. The intercept controller training was undertaken by the Applicant and she was posted as an additional person to the Royal Australian Air Force Williamstown base on or about 21 June 1999.

According to an Interview Record dated 12 August 1999 (Exhibit A8) p.8) of the Applicant the interviewer concluded,

"Overall, a motivated and articulate officer who appears to be experiencing some performance anxiety, but is generally coping well with the course content."

On 26 August 1999 the Applicant sought psychological counselling and an Interview Record (Exhibit A8 p.10) notes that the Applicant "self referred" and states, "She has been bursting into tears on the course frequently, and is having difficulty controlling her emotional reactions and is worried that is 'going mad'". In the same Interview Record reference is made to perceptions of inequality of gender and "the fact that (the Applicant) has no time to get her life together as a result of her frequent postings and constant sea time". Reference is also made in the same Interview Record to the Applicant being "the only female on the course and feels that she cannot talk to males about her feelings, and she also feels under pressure to maintain her composure because she does not want to be looked down on by the male course members". These matters are referred to by way of background only and do not form part of the complaint but do put into context the commencement of the Applicant's subsequent diagnosis of depression referred to further in this judgment.

On 20 September 1999, after completing her training, the Applicant rejoined HMAS Canberra as an Officer of the Watch and Air Intercept Controller (AIC) (N billet). It is noted that in a report dated 11 October 1999 (Exhibit A8, p.12) completed at the conclusion of the Applicant's training course the following remarks appear,

"SBLT Wiggins performed satisfactorily while on course. She performed consistently throughout, but her practical skill strengths were demonstrated during the Live Hornet phase. She demonstrated a great deal of situational awareness, accurate decision making, and overall controlling competence during the final and most challenging phase of training. SBLT Wiggins will made a solid AIC for the fleet".

On 1 January 2000 she was promoted to the rank of Lieutenant in the Navy.

On or about 7 February 2000 the Applicant was diagnosed with depression and thereafter was classified as "Medical Category 6", which means:

"Unfit for sea duty, fit for shore duty in Australia except in a tropical or remote area".

The Applicant was then posted to a shore posting at Port Services, HMAS Stirling, as a "Fleet Support Officer". That posting was to take effect on 6 March 2000.

On 6 March 2000 the Applicant commenced duties at HMAS Stirling under the supervision of Lieutenant Commander, as he then was, Jonathan Sadleir, who was then the Port Services Manager.

It appears that the Applicant worked almost continuously at HMAS Stirling from 6 March until 10 April 2000. On 13 April 2000 she proceeded on sick leave for a 14 day period. According to naval records the Applicant in total appears to have been posted to Port Services between 6 March 2000 and 1 May 2000. On 1 May 2000 she was posted from Port Services to what is described as an "Additional Position at the Command Centre at HMAS Stirling". That posting occurred on 1 May 2000 following a posting order on 20 April 2000. Allowing for the absence due to sick leave it is common ground and accepted by the Applicant that she was present at the Post Services office for a total period of approximately 28 working days during the eight week posting period (see transcript p.241)

On 9 August 2000 the Applicant underwent a further medical examination and was classified as being an "MEC 3"; that is:

"Unfit for sea duty, fit for shore duty in Australia except in a tropical or remote area".

It will be noted, therefore, that from 8 February 2000 until 9 August 2000, the medical classification of the Applicant was unaltered. On 15 November 2000 the Applicant underwent a further medical survey. On that occasion she was classified as being "MEC 2" and categorised as being:

"Fit for shore duty or for sea duty in a ship carrying a full-time medical branch sailor of POMED rank or LSMED ACCC."

There appears to be no difference between the Medical Category 6 classification and the "MEC 3" classification.

On 29 November 2000 the Applicant commenced a posting at defence recruiting located in Perth.

By letter dated 1 July 2001 the Applicant made a complaint to the Human Rights and Equal Opportunity Commission (HREOC).

On 10 December 2001 the Applicant completed a form entitled "Application for Resignation Discharge or Transfer to the Reserves" (Exhibit R10). In that document it is noted that the Applicant's discharge date is 31 March 2002 and her last working day was

1 February 2002. The application applied for "transfer" to "Standby Reserves" for a period of 5 years. The supervisor in the document under the heading, "Supervisor's Comments" states, "Recommended subject to prompt replacement". The Commanding Officer's comments are as follows:-

"LEUT Wiggins fills a critical role as Navy EO and a replacement officer is essential. Agreement for early discharge is contingent on this replacement."

By a document dated 21 January 2002 entitled, "Transfer of An Officer to the Australian Naval Reserve under Naval Forces Regulations" the Applicant was transferred to the Naval Emergency Reserve Force (Standby Reserve) in the rank of Lieutenant to that effect at the expiration of 31 March 2002 and states, "the said officer having, by instrument, volunteered for such transfer".

After leaving the Navy the Applicant undertook training in physiotherapy and completed a Master of Physiotherapy course at Curtin University of Technology, Western Australia. She commenced her Masters in Physiotherapy in 2003 and completed the course in 2005. The Applicant was registered as a physiotherapist with the Physiotherapist Registration Board of Western Australia on 28 April 2005.

The claims of unlawful discrimination arise from the posting to shore duties at HMAS Stirling.

The Applicant relied upon an Amended Application filed 9 September 2005 and otherwise sought to pursue certain claims in written submissions. It is appropriate to consider at the outset the nature and extent of the claims relied upon by the Applicant. There is a dispute regarding the extent and nature of the claims which in part relies upon the ruling referred to earlier in this judgment.

The Applicant's claims arising from the Amended Application fall into two categories. First, claims arising out of the SDA and secondly, claims arising out of the DDA.

In the amended application the SDA claims appear as follows:

"15. The Applicant claims that she was sexually harassed and discriminated against on the basis of her sex during her time at Port Services.

PARTICULARS

a The work environment at Port Services was hostile due in large part to the behaviour of LCDR Sadleir. Hostility was directed almost exclusively at the Applicant and other women posted to Port Services;

b LCDR Sadleir made sexually explicit remarks and derogatory comments to the Applicant and other women in the office;

c At a meeting with LCDR Sadleir, Warrant Officer William Clifton, Sub Lieutenant Theresa Jackson and Sub Lieutenant Leah Clemets, the women were told by LCDR Sadleir that they were not to think or cause trouble but were to look attractive for him and his mates;

d At the same meeting mentioned in paragraph 15c, LCDR Sadleir told the Applicant and the other women that he was the envy of other mates on the base because he had three blonde officers working for him;

e The Applicant was told by the other women at Port Services not to eat bananas or carrots in the office because LCDR Sadleir said he found it "too much of a sexual turn on";

g (a male civilian co-worker at Port Services, Robert Douglas) was not belittled when he made mistakes whereas women in the office were belittled, publicly dressed down and reprimanded upon making any error;

h In April 2000, the Applicant discovered a major error and security breach on the part of Douglas. Upon offering to assist him rectify the situation she was verbally abused and physically threatened by him. Upon reporting this to LCDR Sadleir nothing was done about it and the security breach was covered up;

i Women in the office were to have only half an hour for lunch and were expected to go to the gym during that time. In contrast, Douglas was allowed time off for extended lunches or to leave the office early despite being rostered on for the whole day. Similarly, LCDR Sadleir took time off at will."

The above SDA claims have been modified from the version which appeared in the amended application filed 9 September 2005 to correct minor errors and to omit subparagraph (f) of the particulars which had been subjoined to paragraph 15 of the amended application. In addition to the claims set out above, it was asserted that discrimination had occurred as a result of the commanding officer's failure to follow protocols and/or due to inactivity by failure to properly investigate claims of unlawful discrimination as alleged to be in breach of the SDA.

The DDA claims are summarised as follows from the amended application:

"16. During her time at Port Services, the Applicant claims she was discriminated against on the basis of her disability.

PARTICULARS

a The Applicant was made to feel guilty by LCDR Sadleir for requesting time off to attend medical and counselling appointments;

b The Applicant was required by Dr Srna to attend a two-week behavioural therapy course and thereafter to have convalescent leave. The aim of such treatment was to address the Applicant's anxiety and depression and to assist in a positive return to work. Upon reporting for duties again on or about 1 May 2000, the Applicant was told she had been removed from her position as Fleet Support Officer. This move was made without consultation. No reasons were given to the Applicant for her reposting and the Applicant believes the move was due in whole or part to her disability;

c Removal of the Applicant from her posting at Port Services without consultation was unusual and is in contravention of the Defendant's own guidelines and practices;

d The Applicant was informed by the Executive Officer of HMAS STIRLING, Lieutenant Commander Fahy ("LCDR Fahy"), to whom she later complained about the work place at Port Services, that LCDR Sadleir said he had re-posted her due to her spending too much time away from the office due to treatment for her depression;

e The Applicant was informed by LCDR Fahy that Commander Di Pietro ("CMDR Di Pietro"), Commander of HMAS STIRLING, said that the Applicant was being moved due to the fact that she suffered from depression;

f By way of the Defendant's response to the Human Rights and Equal Opportunity Commission in relation to this Complaint, the Defendant admits that the re-posting of the Applicant was in whole or part due to concern by LCDR Sadleir as to the Applicant's time away from work, and that LCDR Jager (Posting Officer) also noted her periods of illness resulted in him suggesting the Applicant be posted to a less critical role;

g The Applicant does not believe there was any medical opinion sought or obtained to support a need to remove her from her posting at Port Services;

h The Applicant was posted to the Public Affairs Office as an odd jobs person, working with two civilians. This was in effect a demotion."

The above summary from the amended application has been reproduced from the amended application filed 9 September 2005, though again with some corrections to the spelling. Any claim in relation to a failure to follow protocols or inactivity arising out of this complaint was not pursued at the hearing.

It is further noted that the claims made by the Applicant to some extent were the subject of additional material set out in affidavits. I accept as submitted by the Applicant that the Court is entitled to rely upon affidavit material to augment the claim and that a strict approach to the interpretation of the pleadings or points of claim in the Amended Application is not appropriate. I am satisfied in the present case that the issues sought to be agitated in the closing submissions by the Applicant do not transgress the earlier ruling referred to by the Court. However, it is noted that a number of the claims have been referred to by the Respondent in written submission as "new claims". It was argued that entirely new and impermissible claims have been initiated in the closing submissions filed on behalf of the Applicant. The claims, it was argued, were not raised in the Amended Application nor in the opening. It was further argued the Respondent was not previously notified with any or any sufficient particularity of the claims in order to know that the claims had been made.

It was submitted by the Respondent that the Court should not permit the Applicant to raise new claims at this late stage as to do so would involve a denial of procedural fairness to the Respondent. Leave would be required for the Applicant to pursue the new claims at this late stage and it was noted by the Respondent that no application has been made for that leave to be granted.

The Respondent submitted that the Court would need to determine whether the Applicant is to be permitted to pursue what it described as a new claim and any consequential applications to be made and proceeds on the basis that matters could be dealt with in oral submissions.

So that there is no doubt about the matter, it is not appropriate to permit the Applicant to transgress the ruling referred to earlier by the Court whereby the Court ruled the Applicant is not permitted to raise as a part of the claim the posting to HMAS Stirling.

Otherwise it is noted that during the course of submissions the Respondent sought to persuade the Court that the Applicant in closing submissions had impermissibly raised new claims. It was argued that if the Court were to accept the new claims then the Respondent may seek to put other material before the Court and make application for leave to re-open the Respondent's case. For reasons which will become apparent it is my view that having regard to the history of this matter and the general approach that the affidavit material may augment the claims set out in the Amended Application, I do not regard it as necessary for the Respondent to seek leave to re-open the case or place new material before the Court. It is appropriate however that I should deal with what had been identified as the "new claims" and then seek to, as best I can, set out what I regard as an accurate and appropriate summary of the claims properly before the Court. The task of the Court in unravelling the grounds relied upon in the Application was not made easier by the fact that there was some considerable delay with the Applicant in providing in clear terms details of the statutory provisions relied upon by the Applicant notwithstanding that the Court requested those details on the first day of the hearing. The details were ultimately provided to the Court during closing submissions.

Nevertheless, the Respondent whilst conceding that if the evidence of the Respondent is preferred to that of the Applicant that it is "highly unlikely that these new claims evaporate in any event" still sought to identify the new claims and reserve the possibility of re-opening the case.

The new claims as identified were set out in paragraph 11 of the Respondent's written submissions dated 15 December 2005 as follows:-

• A new indirect disability discrimination claim whereby it is argued that the Navy failed to ensure that information in relation to the Applicant's medical condition was made available to Commander Sadleir. This complaint the Respondent submitted appears to raise the suggestion that the Navy failed to make "special provision" for the Applicant by not making Commander Sadleir aware of the Applicant's medical condition (see [37]-[43] Applicant's Closing Submissions dated 5 December 2005.

• A new claim of indirect disability discrimination is raised whereby it is claimed the Navy failed to make "special provision" for the Applicant but "not curtailing Commander Sadleir's known aggression and intolerance" (see [44] - [50] Applicant's Closing Submissions).

• A new claim of indirect discrimination made on the basis that the Respondent failed to make "special provision" for the Applicant's disability in not controlling the behaviour of Robert Douglas (see [51] - [53] Applicant's Closing Submissions).

• A new claim of direct disability discrimination based on the contention that the Navy's failure to comply with its protocols and standards of conduct with regard to the Applicant was directly discriminatory per se (see [59] - [83] Applicant's Closing Submissions).

• A new claim that Lieutenant Commander Fahy directly discriminated against the Applicant by reason of her sex in not properly managing the Applicant's complaints of sexual harassment and discrimination (see [102] Applicant's Closing Submissions).

• A new claim that the Respondent acted unlawfully in harassing the Applicant in relation to her disability in contravention of s.35(1) or (2) of the DDA.

Whether or not there were other new claims is a little unclear though the Respondent further expressed concern that at [5] of the Applicant's Closing Submissions a submission was made that the Navy should accept vicarious liability for the conduct of Lieutenant Commander Fahy and the conduct of Robert Douglas.

The Applicant submitted that none of the claims identified above are new claims or claims excluded by the Court's ruling of 15 November 2005. It was argued the terminated complaint before HREOC raised the incompatibility of the work environment at the Port Services office with the Applicant's disability and raised the suggestion that Commander Sadleir wanted the Applicant out of the Port Services Office due to her disability. Reference was made to the correspondence from the Applicant to HREOC dated 27 February 2002 where reference was made to an issue whereby the Applicant sought to be advised of "any steps taken by the ADF to accommodate Ms Wiggins condition". The Navy it was argued replied to that question in its correspondence where in part it stated,

"As to whether steps have been taken by the ADF to accommodate Ms Wiggins condition including the implementation of any rehabilitation or return to work programs LCDR Sadleir noted that following an expression of concern by him to command about Ms Wiggins absence from work and the impact this was having on the performance of Port Services, he was advised that 'the plan was for her to assume duties with HQ'. This move was designed to respond to Ms Wiggins complaints".

In my view the disability discrimination based upon what may be regarded as indirect disability involving a failure to make "special provision" for the Applicant's disability whilst employed at Port Services is not a new claim nor do I regard it as a new claim of indirect disability discrimination based upon an alleged failure by the Navy to ensure that information in relation to the Applicant's medical condition was made available to Commander Sadleir. That issue was the subject of evidence and I am satisfied raised sufficiently before HREOC to make it a legitimate part of this claim. It also became part of the evidence specifically addressed during the course of Commander Sadleir's evidence and in particular the evidence of Mr Jager to which reference will be made further in this judgment.

I do regard as a new claim however any suggestion of indirect disability based upon a failure allegedly by the Navy to make special provision for the Applicant by "not curtailing Commander Sadleir's known aggressiveness and intolerance". I would disallow that claim though will deal with it in the course of my findings in relation to the claims made by the Applicant specifically in relation to the alleged conduct and statements made by Commander Sadleir. I further agree that there now appears to be a new claim of indirect disability discrimination made upon the basis of the Navy's alleged failure to make special provision for the Applicant's disability by not controlling the behaviour of Robert Douglas. I did not detect any material which would form the basis of that claim before HREOC and it should be disallowed. It is not the same or substantially the same as the claim raised before HREOC. The claim allegedly based upon the mismanagement of the Applicant's complaint by Lieutenant Commander Fahy does appear to be a new claim which I do not believe should be allowed. It is acknowledged that the claim was made in the alternative and that primary liability seemed to be alleged to Captain Di Pietro based upon Lieutenant Fahy's evidence. For reasons which will become apparent exclusion of this claim does not in my view cause any undue prejudice to the Applicant given the findings set out later in this judgment.

I do not accept that at any time a concession made concerning vicarious liability by the Respondent extended to the conduct of either Commander Fahy or Robert Douglas though again for reasons which will become apparent that issue will not need to be addressed. I accept that vicarious liability was accepted in relation to the conduct which was the subject of prior notice and related to claims as submitted by the Respondent of which the Respondent was "aware - that is the claims concerning Commander Sadleir, Captain Di Pietro and Adrian Jager".

Having regard to those rulings and considering the issues now sought to be raised, the claim may be properly considered to include the specific allegations raised under the provisions of the SDA together with an alleged failure to follow appropriate Navy protocols and procedures when dealing with alleged complaints by the Applicant. Further, the claims arising under the DDA appear to involve those claims set out in the Amended Application together with a claim of indirect disability discrimination arising from the alleged failure by the Navy to ensure that information in relation to the Applicant's medical condition was made available to Commander Sadleir. A further claim arising under the DDA followed the treatment of the Applicant whilst taking sick leave from her position at HMAS Stirling and her removal from her duties at HMAS Stirling without consultation and posting to what is referred to as a demotion in the Public Affairs Office as an "odd jobs person".

The relevant provisions under the SDA are:

"5(1) For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the sex of the aggrieved person if, by reason of:

(a) the sex of the aggrieved person;

(b) a characteristic that appertains generally to persons of the sex of the aggrieved person; or

(c) a characteristic that is generally imputed to persons of the sex of the aggrieved person;

the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of the opposite sex.

(1A) To avoid doubt, breastfeeding (including the act of expressing milk) is a characteristic that appertains generally to women.

(2) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the sex of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person.

(8) A reference in subsection 5(1), 6(1) or 7(1) or section 7A to the doing of an act by reason of a particular matter includes a reference to the doing of such an act by reason of 2 or more matters that include the particular matter, whether or not the particular matter is the dominant or substantial reason for the doing of the act.

14(2) It is unlawful for an employer to discriminate against an employee on the ground of the employee's sex, marital status, pregnancy or potential pregnancy:

(a) in the terms or conditions of employment that the employer affords the employee;

(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment;

(c) ...; or

(d) by subjecting the employee to any other detriment.

28(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 that the person harassed would be offended, humiliated or intimidated.

(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.

28B(1) It is unlawful for a person to sexually harass:

(a) an employee of the person; or(b) a person who is seeking to become an employee of the person.

(2) It is unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer.

The relevant provisions under the DDA are as follows:

"5(1) For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.

(2) For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.

6. For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition:

(a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and

(b) which is not reasonable having regard to the circumstances of the case; and

(c) with which the aggrieved person does not or is not able to comply.

15(2) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee's disability or a disability of any of that employee's associates:

(a) in the terms or conditions of employment that the employer affords the employee; or

(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or

(c) ...; or

(d) by subjecting the employee to any other detriment.

35(1) It is unlawful for a person to harass another person who:

(a) is an employee of that person; and(b) has a disability;

in relation to the disability.

(2) It is unlawful for a person to harass another person who:

(a) is an employee of a person by whom the first-mentioned person is employed; and(b) has a disability;

in relation to the disability.

53(1) This Part does not render it unlawful for a person to discriminate against another person on the ground of the other person's disability in connection with employment, engagement or appointment in the Defence Force:

(a) in a position involving the performance of combat duties, combat-related duties or peacekeeping service; or

(b) in prescribed circumstances in relation to combat duties, combat-related duties or peacekeeping service; or

(c) in a position involving the performance of duties as a chaplain or a medical support person in support of forces engaged or likely to be engaged in combat duties, combat-related duties or peacekeeping service.

(2) In this section:

combat duties means such duties as are declared by the regulations to be combat duties for the purposes of this section.

combat-related duties means such duties as are declared by the regulations to be combat-related duties for the purposes of this section.

medical support person means:

(a) a person exclusively engaged in the search for, or the collection, transport or treatment of, the wounded or sick, or in the prevention of disease; or

(b) a person exclusively engaged in the administration of medical units and establishments.

peacekeeping service has the same meaning as in the Veterans' Entitlements Act 1986."

Apart from the relevant legislation it is appropriate that the court sets out in brief terms the onus and standard of proof, the law in relation to drawing inferences and the matters required to be proved in order to establish unlawful discrimination arising under either the SDA or DDA.

In this claim I am satisfied that as a matter of law the Applicant bears the onus of proving that the conduct alleged in her amended application occurred on the balance of probabilities. In this application I accept that the allegations made of unlawful discrimination pursuant to the SDA involve what I regard as serious allegations. Whilst some of the allegations may appear less serious, they are all allegations made in the context of a command structure at a naval base where the nature and circumstances of the allegations, in my view, can probably be regarded as serious. Accordingly, it is appropriate in the circumstances, having made that observation, to conclude that in this instance the standard of proof required of the Applicant should attract the Briginshaw test.

When referring to the Briginshaw test it is useful to set out the following extract from the decision of the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 where Dixon J states the following at 361-362:

" ...when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences."

The claims arising under the DDA, however, in my view, whilst significant, are not of such seriousness as to attract the Briginshaw test.

A significant part of the evidence required the court to draw certain inferences when determining whether unlawful discrimination has occurred. The Respondent submitted, and I accept, that:

"Inferences cannot be drawn in the absence of proven facts forming a reasonable basis for a definite conclusion affirmatively drawn of which the court may reasonably be satisfied."

The Respondent further submitted, and I accept that:

"The drawing of an inference from other facts is only permissible where those facts 'do no more than give rise to conflicting inferences of equal degree of probability so that the choice between them is a mere matter of conjecture'. (See Jones v Dunkel (1958-1959) 101 CLR at 304-305)."

I further note and accept, as submitted by the Respondent, that it is impermissible to draw an inference where the evidence reasonably admits of different conclusions. (See Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 355)

I further note and accept, as submitted by the Respondent, that in cases of this kind, all the elements must be proved, and the mere absence of explanation for conduct or non-acceptance by the court of an explanation given does not of itself provide proof of the element (see Department of Health v Arumugam [1988] VicRp 42; (1988) VR 319 at 330 and KLK Investments v Riley (1993) 10 WAR 523 at 528).

When dealing with direct discrimination under the SDA, it is clear in my view, on a proper reading of s.5(1) of the SDA, that the words "by reason of the sex of the aggrieved person" means that a causal connection is necessary between the sex of the Applicant and the less favourable treatment afforded to her. It is not necessary for the Applicant to prove intention or motive to discriminate on the part of the Respondent. It is useful to set out an extract from the decision of Lockhart J in the Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd (1993) 46 FCR 301 where at pages 321-322 His Honour stated:

"In my opinion the phrase "by reason of" in s 5(1) of the SD Act should be interpreted as meaning "because of", "due to", "based on" or words of similar import which bring something about or cause it to occur. The phrase implies a relationship of cause and effect between the sex (or characteristic of the kind mentioned in s 5(1)(b) or (c)) of the aggrieved person and the less favourable treatment by the discriminator of that person.

...

In my view the Act requires that when an inquiry is being held into alleged discrimination prohibited by s 14(2) on the ground of the sex of an employee, all the relevant circumstances surrounding the alleged discriminatory conduct should be examined. The intention of the defendant is not necessarily irrelevant. The purpose and motive of the defendant may also be relevant. The law draws distinctions between the concepts of intention, motive and purpose for various purposes, some of which were adverted to by Lord Goff in Eastleigh (at 773). In some cases they may be central to the case. An obvious example is where a man refuses to employ women because he does not like women. In other cases, of which Birmingham and Eastleigh are examples, intention, motive or purpose may be of little, if any, relevance. A public authority may have a policy which determines its conduct such as the criterion adopted in Eastleigh admitting women free of charge to the leisure centre if they were over 60 but not admitting men free of charge until they reached the age of 65. In that case, the criterion was so essentially discriminatory in its nature that evidence of the Council's intention, motive or purpose would have added little or nothing to save the policy from inevitable conflict with the Sex Discrimination Act 1975 (UK). That is the view which the majority of the House of Lords adopted. But that does not render evidence of intention or motive irrelevant, though it would bear strongly on its weight.

Thus, in some cases intention may be critical; but in others it may be of little, if any, significance. The objects of the SD Act would be frustrated, however, if sections were to be interpreted as requiring in every case intention, motive or purpose of the alleged discriminator: see Waters per Mason CJ and Gaudron J (at 359).

The search for the proper test to determine if a defendant's conduct is discriminatory is not advanced by the formulation of tests of objective or causative on the one hand and subjective on the other as if they were irreconcilable or postulated diametrically opposed concepts. The inquiry necessarily assumes causation because the question is whether the alleged discrimination occurs because of the conduct of the alleged discriminator; and the inquiry is objective because its aim is to determine on an examination of all the relevant facts of the case whether discrimination occurred. This task may involve the consideration of subjective material such as the intention or even motive, purpose or reason of the alleged discriminator; but its significance will vary from case to case ...

...

I am not attracted by the proposition (which appears to have been favoured by the majority of the House in Eastleigh) that the correct test involves simply asking the question what would the position have been but for the sex (or marital status) of the complainant. The "but for" test may be a useful practical guide in many cases; but I share the reservations expressed by Lord Griffiths in Eastleigh (at 768). It is a test to be handled with care as its beguiling simplicity masks the real inquiry that must be conducted. Let me give a simple example. Assume a man and a woman apply for a particular job and the employer, a male, employs the male applicant. The female applicant was treated less favourably than the male applicant in that he got the job and she did not. Can it be said that she would have got the job but for the fact that she is a woman. Plainly not, if all she relies on is the fact that the man was the successful applicant and she was not. There could be a number of reasons why the employer chose the man and not the woman and they must be examined which involves an inquiry into all the relevant circumstances. The answer may simply be that the male employer dislikes women in the workforce and would never employ them -- a clear case of discrimination. But the answer may be more complex and involve a number of matters which on analysis may or may not reveal discriminatory conduct on the ground of sex. Provided the "but for" test is understood as not excluding subjective considerations (for example, the motive and intent of the alleged discriminator) it may be useful in many cases; but I prefer to regard it as a useful checking exercise to be engaged in after inquiring whether in all the relevant circumstances there has been discriminatory conduct. ..."

In this case, reliance is placed upon claims that unlawful discrimination has occurred pursuant to s.14 of the SDA, set out earlier in this judgment. It is not necessary to recite the matters to be proved under that provision.

It is further noted that the claims made further rely upon s.28B of the SDA which necessarily requires the court to consider the meaning of sexual harassment set out in s.28A of the SDA, both of which have been referred to earlier in the judgment.

In the present case, it was submitted by the Respondent, and I accept, that in order for the Applicant to succeed in her claim of sexual harassment, she should establish the following three matters:

•

first, it must be established that Commander Sadleir made a sexual advance or request for sexual favours or engaged in conduct of a sexual nature in relation to the Applicant within the meaning of s.28A(1)(a) and (b) of the SDA;

•

second, it must be established that the conduct was unwelcome within the meaning of s.28A(1)(a) and (b) of the SDA;

•

thirdly, the Applicant must satisfy an objective test in establishing that in the circumstances alleged, a reasonable person having regard to all the circumstances would have anticipated that the Applicant would be offended, humiliated or intimidated within the meaning of s.28A(1) of the SDA.

In relation to the claim of unlawful discrimination arising out of the DDA, I have set out above the relevant provisions; namely, ss.15(2)(a), (b) or (d) and s.35(1) and (2) of the DDA.

I accept, as submitted by the Applicant that s.5(1) of the DDA requires equality of treatment between the disabled and those who are not (see Purvis v State of New South Wales [2003] HCA 62; (2003) 202 ALR 133 at 183) (Purvis). I further accept, as submitted by the Applicant, that the necessary comparisons to be made between the treatment of a disabled person and the treatment of a person without a disability in circumstances that are the same or are not materially different (see Purvis at 183). As submitted by the Applicant, the court is required to examine what would have been done in the same circumstances if the person concerned were not disabled (see State of Victoria v Schou (2004) VSCA 71 [25]).

Section 6 of the DDA refers to "requirement or condition", and I accept, again as submitted by the Applicant, that that may be construed broadly to include "any form of qualification or prerequisite" (see Australian Iron and Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165 at 185).

I further accept the test of reasonableness is an objective test.

A matter not in dispute is the requirement under the DDA that the Applicant had a disability at the relevant time.

When dealing with the specific claim arising out of the Applicant's transfer out of Port Services, there is no dispute that she was transferred. I accept, however, as a matter of law, that for unlawful discrimination to be found pursuant to the DDA in relation to this aspect of the claim, the court should determine whether the discriminator transferred the Applicant because of her depression.

Both parties correctly conceded that in order to demonstrate that discrimination has occurred on the ground of disability, it is necessary to show the discriminator was aware of the disability (see Tate v Rafin [2000] FCA 1582 at [65], [67] and [68]).

I accept that for the Applicant to succeed, she should establish that the transfer constituted less favourable treatment of the Applicant than the treatment of an officer without depression in circumstances that were the same or not materially different pursuant to s.5(1) of the DDA. Section 15(2)(a), (b) and (d) requires that the less favourable treatment was in the terms or conditions of employment afforded to the Applicant or by denying the Applicant access to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or in this instance, subjected the Applicant to any other detriment.

A discrete issue was raised by the parties in relation to submissions concerning the identification of "the discriminator" within the meaning of the legislation. In my view, it is appropriate to determine that issue at the outset, and I accept the submissions made for and on behalf of the Applicant that the Respondent at all material times could properly be described as the relevant discriminator, albeit that acts of individuals then employed by the Respondent are claimed to have engaged in the unlawful discrimination. I note that ss.5 and 6 of the DDA refer to a discriminator as a person, though I accept that this is not confined to an individual. Reference was made by the Applicant to s.22(1) of the Acts Interpretation Act 1901 (Cth) which provides that:

"(1) In any Act, unless the contrary intention appears:

(a) expressions used to denote persons generally (such as "person", "party", "someone", "anyone", "no-one", "one", "another" and "whoever"), include a body politic or corporate as well as an individual;

(aa) individual means a natural person;

..."

In my view, the Navy is a "person" for the purpose of the DDA, as submitted by the Applicant. If the legislature had intended to limit the notion of discriminator to a natural person, then I accept, as submitted by the Applicant, that it could have used the word "individual" referred to in s.22(1)(aa) of the Acts Interpretation Act.

I have included the claim of harassment under the DDA as it appears to be obliquely raised and may arguably have arisen under the HREOC Act. For reasons which will become evident I accept that those allegations were not pursued with full vigour and ultimately it will be unnecessary for the Court to rely upon what I conclude to be somewhat vague and unclear allegations of harassment due to disability.

I note further, to the extent that it is required, that the DDA makes specific provision for the state of mind of a body corporate in ss.123(1) and (2).

It should be noted that there is no issue taken in the present case concerning the vicarious liability of the Respondent in relation to the alleged conduct of the officers referred to by the Applicant in her claim, and hence it is not necessary for the court to consider the application of s.106 of the SDA or the conduct of the Respondent as an employer of the officers against whom allegations were made by the Applicant pursuant to s.123 of the DDA.

The Applicant relied upon an affidavit sworn by her on 10 October 2005 (Exhibit A1) and a supplementary affidavit sworn by her on 16 November 2005 (Exhibit A9).

It will be noted from the particulars relied upon in the Amended Application that a number of general issues were raised concerning the conduct of Commander Sadleir and then more particular details given of specific events.

The general claim related to the work environment being hostile "due in large part to the behaviour of LCDR Sadleir". Further it was claimed "hostility was directed almost exclusively at the Applicant and other women posted to Post Services". The evidence in support of this claim from the Applicant's affidavit (Exhibit A1) included a reference by the Applicant that she found the "work environment at Port Services to be extremely stressful for a variety of reasons the prime one being my immediate superior LCDR Sadleir. I found LCDR Sadleir to be extremely offensive and hostile in nature towards me" (see [12] of Exhibit A1).

The Applicant relied upon the evidence of two other witnesses in support of this general claim.

In support of the claim of unlawful discrimination arising out of the SDA the Applicant claimed that LCDR Sadleir made sexually explicit remarks and derogatory comments to the Applicant and other women in the office. These specifically involved an allegation made at a meeting where LCDR Sadleir in the presence of others including Warrant Officer William Clifton, Sub Lieutenant Theresa Jackson and Sub Lieutenant Leah Clemets when the women were allegedly told by LCDR Sadleir that they were "not to think or cause trouble but were there to look attractive for him and his mates". At the same meeting the specific allegation was made that LCDR Sadleir said something like, "He was the envy of other males on the base because he had three blonde officers working for him". The third allegation is that the Applicant was told by other women at Port Services not to "eat bananas or carrots in the office because LCDR Sadleir said that he found it 'too much of a sexual turn on'". That last comment it is conceded was not made in the presence of the Applicant who allegedly was informed by other women of the comment. Accordingly as

I understand it the way in which the claim is relied upon by the Applicant is that as submitted by the Applicant's counsel, "Commander Sadleir ought to have known that this direction would be passed on to new staff such as Ms Wiggins".

It should be noted that in the Amended Application it was not made clear that the other comments were made in the presence of the Applicant.

It is conceded by the Respondent that if comments were made in the presence of the Applicant including comments like, "not to think or cause trouble but were there to look attractive for him and his mates" and that "he was the envy of other males on the base because he had three blonde officers working for him" then those comments could constitute conduct of a sexual nature within the meaning of s.28A(1)(a) and (b) of the SDA.

In her first affidavit the Applicant in relation to the alleged comments states as follows in paragraph 19:-

"19. LCDR Sadleir made sexually explicit remarks and derogatory comments to me and other women in the office on a regular basis. An example of this is when at a meeting with LCDR Sadleir, Warrant Officer William Clifton, Sub Lieutenant Theresa Jackson and Sub Lieutenant Leah Clemets, myself and the other women present were told by LCDR Sadleir that we were not to think or cause trouble but were to look attractive for him and his mates. At this same meeting, LCDR Sadleir told myself and the other women present that he was the envy of other males on the base because he had three blonde officers working for him."

In her supplementary affidavit at paragraph 8 the Applicant deposes:-

"8. In relation to paragraph 19 of my earlier affidavit I say further that the derogatory comments made by LCDR Sadleir to me and other women on a regular basis were that women were 'fucking useless', and the specific instances of comments that I have described in paragraph 19."

Kirshy Maree Read adopted an affidavit sworn by her on 29 July 2005 (with a deletion in the first sentence of paragraph 5). She deposed that she had been a naval officer from 23 January 1995 until her resignation which became effective on 21 October 2000. At the time of her resignation she held the rank of Sub Lieutenant. She was posted to HMAS Stirling as the Executive Officer's assistant in May 2000. The Executive Officer at the time was Lieutenant Commander (LCDR) Robin Fahy. Ms Read claims in her affidavit that in her position as Executive Officer's assistant she worked closely with LCDR Fahy and also with the then commanding officer Commander (CMDR) Vincenzo Di Pietro. She claimed that in her position she was privy to "information about events and matters taking place at HMAS STIRLING". In her affidavit she further deposed that she had regular contact with the Port Services Manager (PSM).

Ms Read in her affidavit sworn 29 July 2005 (Exhibit A13) stated the following at [4]:-

"I had regular contact with the Port Services Manager (PSM) Lieutenant Commander Jonathan Sadleir. I found him to be an aggressive, rude and arrogant officer who showed open disdain to females within the military. I do not recall and interaction with him where I did not feel threatened or intimidated. On several occasions he was openly disrespectful to LCDR Fahy as executive officer."

Robin Fahy is a naval officer who holds the rank of Lieutenant Commander (LCDR). She was promoted to that rank in 1996. Before this Court she adopted affidavits sworn by her on 10 October 2005 (Exhibit A16) and 14 October 2005 (Exhibit A15). LCDR Fahy was appointed as Executive Officer of HMAS Stirling in November 1999 and took up her position on 26 April 2000.

In her affidavit sworn 10 October 2005 LCDR Fahy states the following:-

3. During the first week of my posting, the Commanding Officer of HMAS STIRLING - the then Commander (CMDR) Vince Di Pietro - advised me that Lieutenant (LEUT) Kellie Wiggins was being posted away from her billet (permanent position number N141N) at Port Services and would be assigned to the Command Element as 'additional' for a period of time. I was advised that LEUT Wiggins was on leave. CMDR Di Pietro said words to the effect: 'LEUT Wiggins is being removed from her billet because she is suffering depression'. CMDR Di Pietro went on to say words to the effect" 'The Port Services Manager does not want LEUT Wiggins in his office'. The Port Services Manager (PSM) was LCDR Jonathan Sadlier. My recollection is that CMDR Di Pietro also intimated that LEUT Wiggins' depression was a 'ploy' to avoid sea service. It was not clear at that time whether or not this posting action had come about as a result of medical advice or as a result of action taken by LCDR Sadlier of CMDR Di Pietro. Later I became aware that LEUT Wiggins alleged that neither LCDR Sadlier nor LCDR Jaeger, her career manager within the Directorate of Naval Officers' Postings (DNOP), had acted in accordance with the provisions of ABR 6289-RAN Officer's Career Management Manual, ABR 1991-Royal Australian Navy Health Service Manual Volume 1 Edition 4 or Defence Instruction (General) PERS 16-15 when removing her from her substantive position."

Further in the same affidavit LCDR Fahy deposed:-

"4. During the second week of my posting, I was formally introduced to LCDR Sadlier. I understand that he formerly served in the Royal Canadian Navy and transferred to the RAN. At that initial meeting, he was openly hostile and abrupt. He made it clear that he had little regard for female seaman officers and that as a rule we were 'f------g useless'. ........................... for my part, I found working with him extremely difficult."

In relation to this issue the Respondent submitted that LCDR Fahy gave evidence that was inconsistent and implausible and dishonest.

It was argued that she had become aligned with the Applicant as a result of both having grievances arising from posting at HMAS Stirling. It was noted that LCDR Fahy was aggrieved about her removal from her posting on 20 October 2000 following a detailed analysis of claims made by LCDR Fahy and included reference to the claim made in paragraph 4 of her affidavit set out above. It is common ground that that reference was meant to convey that LCDR Sadleir took the view that female seaman officers as a rule were "fucking useless". That term it was noted by the Respondent did not appear in the Applicant's material until her supplementary Affidavit was filed on day three of the hearing and sworn 16 November 2005 where the Applicant deposed as follows:-

"6. In relation to paragraphs 14, 17 and 21 of my earlier affidavit I say further that in the entire time I was at the Port Services Office LCDR Sadleir was almost never hostile, in any manner including that I have previously described, to any man in the office, including Mr Douglas and Warrant Officer Clifton, yet he was often hostile to the women in the office. He never called a man 'fucking useless' in my hearing, but he would often do so with to myself and other women. He never openly reprimanded Douglas for the many daily mistakes that Douglas made. These included errors on the daily activities schedule, his mismanagement of the safe containing secure documents, his rudeness to people on the telephone and lack of organisation causing complaints to come in from members at sea. During the first month of my time at Port Services Office a deputy supply officer at sea, I do not recall who, said to me words to the effect of 'thank goodness you are there and you can help us, we find port services unhelpful'."

It is noted that both the witnesses Kirshy Read and LCDR Fahy did not commence working at Port Services or at HMAS Stirling until after the Applicant's attendance at Port Services. In that context it was noted that neither witness could provide contemporaneous corroboration and that the claims made by the Applicant or any contemporaneous reports made by the Applicant to medical practitioners then treating her of any form of discrimination during her term of service at Port Services. It is noted that the "fucking useless" comment had commenced as a private comment by Commander Sadleir against LCDR Fahy. The comment then, it was submitted by the Respondent had expanded to be a comment directed to all females allegedly made by Commander Sadleir on a regular basis.

It was common ground that LCDR Fahy overheard a comment made in a private conversation which was peculiar to her. The following appears in the transcript during cross-examination of LCDR Fahy:-

"And the comment that was made then was a comment peculiar to you, wasn't it? It was a comment about your capacities and Lieutenant Commander Sadleir's view about your usefulness?---The conversation I heard at that time was with respect to me, yes.

And what you have done, I suggest to you, is taken a specific comment made in private about you and converted it into a comment about female officers generally, and you have given evidence that it occurred at a different place entirely: that is what you have done, isn't it?---No, that is not true.

Because you did not want to tell the court that you have eavesdropped. You didn't want to tell the court that you had overhead a comment about you specifically. What you wanted to do, Lieutenant Commander Sadleir - Lieutenant Commander Fahy, is paint a picture of Commander Sadleir that was quite different. Not a picture of him regarding you as useless, but a picture of him and his attitude to women generally. That is what has happened here, isn't it?---No, that is not true.

When you were eavesdropping, or let me put it in a neutral way - - -

HIS HONOUR: I think you should. The witness has not conceded that.

MR BROMBERG: Yes. When you overheard the conversation between Lieutenant Commander Sadleir and Captain Di Pietro in which you were referred to as fucking useless, did you also hear the admonishment given by Captain Di Pietro to Lieutenant Commander Sadleir in relation to that comment?---No.

You didn't at all?---No."

(Transcript p. 502 lines 10-26)

Likewise reference was made to the evidence of Ms Read who under cross-examination stated the following:-

"Okay. I see. And do you say - just pardon me a moment. And if said that that just never happened, obviously you would disagree?---Yes.

So you say - no, I withdraw that. Now, did Lieutenant Commander Fahy ever tell you, ever say to you that Lieutenant Commander Sadleir had called or described her in that derogatory way, "fucking useless"?---No, not then."

(Transcript p.392 lines 23-29)

It was further submitted by the Respondent in relation to the general allegation of conduct by Commander Sadleir that the reference to the "fucking useless" comment was not included in any of the material provided by the Applicant to HREOC nor in a statement in support of that claim by LCDR Fahy or the primary affidavit relied upon by the Applicant in these proceedings.

The Respondent submitted that the paucity of evidence and the denial by Commander Sadleir should lead the Court to conclude that the Applicant has not discharged the onus of proof in relation to these allegations.

At the time of giving evidence Jonathan David Sadleir held the rank of Commander in the Navy. He relied upon two affidavits, one sworn 26 October 2005 and a supplementary affidavit sworn 17 November 2005. He joined the Navy in 1997. Prior to that date he had served as an Officer in the Canadian Navy. It is not necessary to refer in detail to Commander Sadleir's service in the Canadian Navy save to note that he appeared to have extensive experience in that Navy prior to accepting an invitation to join the Australian Navy. His service in the Australian Navy covered a wide range of duties as an officer and he undertook significant periods of training and studies. He had initially assumed duties of Navigation Officer on a Guided Missile Destroyer HMAS Hobart. In 1998 he was selected for studies at HMAS Watson and completed what is described as the Principal Warfare Officer course. Upon graduating he accepted a position as Officer in Charge of the Bridge Training Facility. In January 2000 he was assigned relevantly to the position of Port Services Manager at HMAS Stirling.

It is relevant to note that after completing duties at HMAS Stirling Commander Sadleir was posted to the position of Navigation/Operations Officer on HMAS Success. In mid 2001 he assumed the role of Fleet Navigation Officer for the Navy. Between November 2002 and June 2004 he completed a posting as Executive Officer on another Guided Missile Destroyer HMAS Adelaide. At the time of swearing his first affidavit he was attending the Australian Command and Staff course along with 25 other naval officers. He was selected by the Deputy Chief of Navy as the Australian representative in the U.S. Central Command based in the Persian Gulf. That posting was scheduled to commence on 11 January 2006.

In addition to his current rank of Commander of the Navy, Commander Sadleir also holds additional qualifications of Principal Warfare Officer Surface Warfare Advanced Navigation, Naval Pilot, Nuclear Power Endorsed Naval Pilot, Ships Driver and a Graduate Diploma in Information Management. He has been awarded citations by the Chief of Defence Staff Canada for his role in the rescue of 90 refugees off the coast of Vietnam and recently received a Maritime Commander Australia commendation for exceptional leadership as Executive Officer of HMAS Adelaide. He has what could only be described as an extensive and impressive naval record both in the Canadian and Australian Navy.

Commander Sadleir's posting to HMAS Stirling covered the period 17 January 2000 to 21 January 2001. In the position of Port Services Manager at HMAS Stirling he was directly responsible to the commanding officer of HMAS Stirling and to the Master Attendant Australia for what he describes as the effective running of what was one of the busiest ports in the Navy. He describes his responsibilities in the following terms at [4] of his affidavit sworn 26 October 2005:-

"4. ... My responsibilities included the provision of pilotage services for all incoming ships, making berthing arrangements for incoming ships and providing wharf services (such as the provision of cranage and oil spill response services). In addition to managing the wharves I also managed the Helicopter Support Facility, the Fuelling Facility and the Defence Maritime Services Contract. My position required operational liaison with Maritime Headquarters Operations West and with civilian ports and harbourmasters. I also held divisional responsibility for the Port Services Department which consisted of approximately 80 personnel. Additionally, I represented the RAN on the Nuclear Power Warship Board (Western Australia)."

In the same affidavit at [5] he described the operation at Port Services in the following terms:-

"5. The operation of Port Services was structured to be responsive 24 hours per day. This required a considerable commitment from staff. Additionally, like much of the RAN, Port Services was understaffed. Consequently, it was, at times, a difficult work environment with significant operational intensity. While there were approximately 90 staff who worked in Port Services during my posting only a handful of them were actually located in the Port Services office."

In his first affidavit Commander Sadleir sets out a description of the Applicant's duties as Fleet Support Officer at HMAS Stirling in the following terms at [10] of the affidavit:-

"10. Lieutenant Wiggins' duties as a Fleet Support Officer were essentially administrative in nature. She had responsibility for liaising with incoming ships and with external authorities as well as responding to logistical requirements. Additionally, Lieutenant Wiggins was required to fulfill the role of Duty Port Manager out of hours. This duty required her, like all other officers within Port Services, to be available in a one and six rotation at night as the first point of contact for the Port of STIRLING. While the Deputy Port Manager position was also vacant for a period, Lieutenant Wiggins did not perform the duties of that position. Lieutenant Wiggins was neither qualified nor appropriately experienced to perform the functions of Deputy Port Manager. This position required a navigation sub-specialisation and piloting experience."

It did not appear that that description of the Applicant's duties was disputed in these proceedings. Other matters raised in his affidavit were the subject of dispute including the time period within which it would take the Applicant to become familiar with the responsibilities associated with the Fleet Support Officer position and the extent to which she was advised of the requirements of that position. Clearly the circumstances of the working environment were in dispute including the conduct of Commander Sadleir.

From the outset Commander Sadleir acknowledged in his first affidavit that he had at times been outspoken though asserted that his contact with the Applicant was appropriate and unexceptional. In his first affidavit he relevantly states:-

"20. The limited contact that Lieutenant Wiggins and I did have was appropriate and unexceptional.

21. Looking back at my time at Port Services, I accept that I could be a demanding person to work with. At that time, I was performing a difficult operational role under challenging circumstances. I was very operationally focused and could, at times, be outspoken.

22. I do not think that I had unreasonable expectations of Lieutenant Wiggins. My expectations of her were no different to the expectations I had of every staff member within Port Services."

It is clear from that affidavit that Commander Sadleir acknowledged that he could be demanding and outspoken. Further in his affidavit when referring to his work with female colleagues he relevantly stated the following:-

"23. I did not 'belittle' Lieutenant Wiggins in front of other members of staff. I regarded her as a new employee in Port Services in need of time to become familiar with her role. As previously stated it would have taken at least three months of dedicated effort for Lieutenant Wiggins to become familiar with all of the responsibilities associated with the Fleet Support Officer position.

24. I was not hostile towards women under my command. I have always, and continue to, treat all people under my command equally regardless of their gender.

25. 1 did not make sexually explicit remarks or derogatory comments about women.

26. I did not tell Lieutenant Wiggins, or anyone else, that women were not there to think but were there to look attractive for me -- and nor do I believe that.

27. I did not tell Lieutenant Wiggins, or anyone else, that I was the envy of all officers because I had three blondes working for me -- and nor did I believe that.

28. I have never told anyone, and nor do I find, eating bananas and carrots to be a sexual turn on. There is a naval saying that it 'must be payday because everyone is eating bananas'. I have used that saying but not as a sexual reference."

In his supplementary affidavit sworn 17 November 2005 Commander Sadleir relevantly states the following:-

"3. ... I was not, and am not, 'aggressive and hot headed'".

In the same paragraph from the supplementary affidavit after referring to his performance evaluations leading up to and including the post at HMAS Stirling Commander Sadleir then deposes as follows:-

"... As you can see from those reports I could be operationally focused and I have been described, from time to time, as having a strong and forceful personality when required. Indeed, from my experience, this is a common characteristic for warfare officers in the navy and it is often necessary when dealing with difficult operational environments. I do set high standards for myself and for people under my command, and my performance evaluation reports reflect that. They also reflect the fact that I could sometimes get frustrated when people failed to meet the expected standards when I considered them to be capable of doing so. However, the reports also show that my professionalism and leadership skills are held in highest regard particularly in environments involving junior officers. Nowhere is any reference made in any of the reports to any form of discriminatory behaviour. You will see from my evaluation at Port Services that I arrived in quite challenging circumstances. 'The Department was not functioning well and had been handed to [me] in need of significant repair'. In my report of 19 January 2001 Captain Di Pietro acknowledged that I was 'dedicated, enthusiastic and focused to achieve the task at hand' and that this quality had the potential to be misunderstood by others who did not share my intensity of purpose. I would accept that."

In his supplementary affidavit in relation to the allegations concerning swearing Commander Sadleir deposes at [4] the following:-

"4. ... I did not swear 'a lot' but I did swear from time to time. I did not say that female staff in the office were 'fucking useless' to Ms Wiggins or to anyone else".

When considering the demeanour of Commander Sadleir and his personality it is noted that in one of the performance evaluation reports annexed to his supplementary affidavit the following extract appears from a report dated 12 June 1998:-

"Sadleir possesses a strong and forceful personality which makes him a natural leader. He relishes every opportunity given to him and will invariably go seeking responsibility ...His leadership style is direct and to the point however he must guard against his intolerance of those who are unable to meet his very high standards. He is a perfectionist when dealing with all matters of navigation and his administration of the department is excellent".

It is clear that LCDR Sadleir strongly denied making the comments during the course of his evidence. It is perhaps relevant to note that in his evidence Commander Sadleir states the following:-

"Okay?---Ultimately, I was, or Warrant Officer Clifton.

She might not have been accountable for it, but was she actually asked to compile it?---Not that I recall specifically, but that doesn't that mean she wasn't asked to help compile it.

Now, were there moments in the office where it wasn't so frantic and busy and challenging and all the rest of it, that the was the time for the occasional joke with the staff?---I would hope so.

Yes? Now, you said that you made, or may have made a joke about payday in bananas, do you remember that?---Yes, I remember saying that.

Yes, so tell us what you said - what you remember saying?---Well, I think in my affidavit, what I said was that I have been known to make the comment, "it must be payday, everybody is eating bananas", but, I mean, in terms of me saying it, or remember specifically when I said it at Port Services, I am not sure, but I wouldn't be, you know, it is not something I say every day, and it is probably not something I said since.

Now, is it fair to say that the "it must be payday, because everyone is eating bananas" is a naval joke?---Well, I didn't hear it until I got in the Navy.

Yes, so what does it mean?---I don't know. It is kind of a silly thing to say, I guess, really. But I mean, it just means - I think it mostly flows from boatswains and dibbies, and - because they call themselves, as sort of nicknames, as decabes, a bit? But I mean, that is not a derogatory term, that is something they call themselves, so I think that is where it flows from, is that sort of joke of "it must be payday, everybody is eating bananas", and probably buffer saying it to their team, and that is about it. I mean, it would have been in the context, "it must be payday, everybody is eating bananas", and then, "oh, I am going to go get a pie, the pie truck is here", I mean it - you know.

Okay, I am reading from the Phillips Fox letter now, that this was a comment that you made, "it must be payday, because everyone is making bananas" - - -?---I would say it is a comment I could have made.

Yes? Is a naval joke, and resulted in laughter at the time?---Usually does.

Well, that is a comment that results in laughter, is it?---Well, I think it is kind of funny, a lot of people think it is funny, and people are laughing in here, so - I am not trying to be trite. Look, I am not - what I am saying is that there is every possibility that I would have said it, I don't remember everybody doing anything but having a giggle at it.

Yes? You deny evidence of telling your staff that they were not to eat carrots or bananas in front of you, because it was a turn-on?---Yes.

And this comment about jokes - bananas on paydays couldn't possibly be misconceived as an - other statement?---I don't know.

Possibly it could, do you think?---I will concede that it possibly could have. I don't see how you make the leap, though."

(Transcript p.652 (lines 1 - 48) and p. 653 (lines 1 - 6))

A further claim of unlawful discrimination arising under the provisions of the SDA related to what is described as discrimination by preferential treatment of men and hostility towards women claimed to be in breach of s.14(2) of the SDA and involving the particulars set out earlier in the amended application relating to a civilian employee in the Navy namely Mr Douglas. In addition to the claims arising out of the discrimination evidence by the different treatment by Commander Sadleir of Mr Douglas to female staff, further particulars were provided in relation to a claimed restriction on the lunch period for female staff. It is sufficient to note that the evidence of the Applicant both in her affidavit material and before the Court covered a wide range of allegations concerning the performance of Mr Douglas. In her supplementary affidavit the Applicant expanded upon the difficulties she had referred to in her first affidavit and relevantly stated in paragraph 6 of the supplementary affidavit the following:-

"6. ... I say further that in the entire time I was at the Port Services Office LCDR Sadleir was almost never hostile, in any manner including that I have previously described, to any man in the office, including Mr Douglas and Warrant Officer Clifton, yet he was often hostile to the women in the office. He never called a man 'fucking useless' in my hearing, but he would often do so with regard to myself and other women. He never openly reprimanded Douglas for the many daily mistakes that Douglas made. These included errors on the daily activities schedule, his management of the safe containing secure documents, his rudeness to people on the telephone and lack of organisation causing complaints to come in from members at sea. ..."

In the supplementary affidavit the Applicant alleged by way of contrast that female staff were treated differently and in that affidavit states relevantly:-

"7. On the other hand, while the female staff did not make many mistakes in the office, LCDR Sadleir often yelled at from his office to give him information immediately when we had no way of knowing the answers without taking time to look them up, in which time he would become exasperated, angry and accuse us aggressively of being incompetent. On the few occasions in which any of the female staff made a mistake, LCDR Sadleir would yell and would bring the mistake up at the weekly staff meeting."

The substantive allegations in relation to the treatment of Mr Douglas compared with other female staff and restrictions placed on female staff in relation to their lunch breaks was denied by Commander Sadleir. He agreed however with the Applicant that Douglas could be difficult to work with and that he had performance issues. Specifically in referring to Douglas, Commander Sadleir in his first affidavit deposes the following at paragraph 29:-

"29. There was a civilian employee named Robert Douglas working in Port Services at the time Lieutenant Wiggins was posted there. I agree with Lieutenant Wiggins that Robert Douglas could be difficult to work with and that he had performance issues. I recall Lieutenant Wiggins, like many others, expressing concern about Robert Douglas and his rudeness to people. I note Lieutenant Wiggins' concerns and for the most part I agree with them. I shared Lieutenant Wiggins' concern that Robert Douglas' behaviour had the potential to impact on Port Services and the RAN. I did not tell Lieutenant Wiggins that she was 'joining the office bandwagon'. I may have indicated that she was not the first person to raise complaints of this nature about Robert Douglas. I would have told Lieutenant Wiggins that if she had concerns about Robert Douglas she should raise them with me and not confront Robert Douglas directly about them. I did not tell Lieutenant Wiggins to 'mind her own business' and I did not accuse Lieutenant Wiggins of 'having it in for Robert'. The suggestion that I publicly humiliated Lieutenant Wiggins for not 'pulling him in to line' is not true."

In relation to action taken concerning Douglas, Commander Sadleir in the same affidavit deposes as follows in paragraph 32:-

"32. I took steps to address Robert Douglas' performance issues and his inappropriate behaviour towards Lieutenant Wiggins. I wanted him removed. I first spoke to the Executive Officer, Lieutenant Commander Plummer, and sought his advise on how to proceed. He referred me to Sean McCarthy, the Manager of Defence Civilian Personnel. I was informed that removing a public service employee was a complex undertaking and beyond my mandate. ..."

In relation to the issue concerning lunch breaks Commander Sadleir deposes at paragraph 34 as follows:-

"34. The suggestion that Robert Douglas (and myself) were able to have extended lunches and leave the office early because of our gender is also untrue. Unlike Lieutenant Wiggins, Robert Douglas was a civilian who was entitled to flex leave and other entitlements in accordance with his status as a public service employee. Lieutenant Wiggins, on the other hand, received the same entitlements and was treated exactly the same as her male colleagues in the RAN. Lieutenant Wiggins suggestion that I was able to 'take time off at will' when she was unable to probably reflects the fact that I was the Port Service Manger and she was a junior officer under my command (rather than reflecting gender bias). Unlike Lieutenant Wiggins I had a number of duties, some of which are referred to previously in this affidavit, which required me to be outside of the Port Services Office and outside of HMAS STIRLING.."

Commander Sadleir in his supplementary affidavit referred to further allegations raised by the Applicant in her supplementary affidavit and specifically states the following:-

"7. I refer to paragraphs 6 and 7 of Ms Wiggins' supplementary affidavits. I deny that I treated men and women any differently from each other on the basis of their sex. I did not publicly reprimand any of my staff, including Ms Wiggins or Bob Douglas. If I had particular concerns about an individual's performance I spoke to them in my office. I occasionally called out to staff from my office (for example to get specific information on vessel movements and radiation hazard issues) if I was on the phone but those requests were directed to whoever was available (and not specifically to the female officers). I did not yell and get angry when Ms Wiggins, or other female staff, made mistakes. I did not accuse anyone in an aggressive tone of being incompetent and I did not consider any of the female officers under my command (including Ms Wiggins) to be incompetent. The only person in the Port Services office whose performance I had concerns about was Bob Douglas. I often raised issues relevant to the operation of Port Services at the weekly staff meetings. This included areas for improvement and things that we were doing well. Individuals were not singled out at these meetings."

The Applicant submitted that it was not sufficient for Commander Sadleir to simply claim that Douglas was treated differently because he was a civilian while female seaman officers were members of the Navy and nor is it sufficient for Sadleir to claim that he was attempting to remove Douglas. It was submitted that Commander Sadleir had the responsibility to make directions concerning day to day terms and conditions of all staff and failure to treat the women in his office in the same manner as his treatment of Douglas "created the perception of discrimination on the basis of gender".

The Respondent submitted that the allegations concerning Douglas and lunch breaks should be rejected. Reference was made to the denials by Commander Sadleir. Specific reference was made to paragraph 34 of Commander Sadleir's first affidavit (Exhibit R17) set out above and to his evidence during the course of cross-examination as follows:-

"I am reading from the Phillips Fox letter again -

Did you receive an assurance from Lieutenant Wiggins that she was happy with the course of action and that the problem appeared to be under control -

this is the problem with Bob Douglas?---In 2000?

Yes?---It appears - - - "

During the course of submissions reference was made to a further incidental claim that she had been refused extra time at lunch time to attend the gymnasium and was "too scared" of Sadleir's reaction "to ask him for time off to even go the gym". (Transcript p.252-253).

It was submitted that the evidence concerning these matters from the Applicant was implausible and in any event that reliance upon Douglas as an appropriate comparator is misconceived due to his position as a civilian employee.

Reasoning and Findings - Sex Discrimination Claim

All witnesses endeavoured to give evidence truthfully. The task of all witnesses including the Applicant as noted earlier was made more difficult where some specific details were only addressed on the first day of the hearing, leading to the filing and service of supplementary affidavits. The details provided in the supplementary affidavits still lacked particulars in relation to dates, times and places and, not surprisingly, lacked corroboration of many key allegations. This is hardly surprising given that the events occurred more than four years ago.

The Applicant's recollection of the claims relating to sexual harassment and unlawful discrimination should be viewed in the light of her then suffering from serious depressive illness and that she was then undergoing active treatment. I have no doubt she genuinely believes she was the victim of sex discrimination and perceives conduct of one of the officers to be contrary to the provisions of the SDA. However, when confronted with vague claims strongly denied by the officer who I find was a witness of truth, and in the absence of specific reliable corroboration, I do not accept the substantive allegations of sex discrimination claimed to constitute discrimination pursuant to the provisions of the SDA have been established.

In considering these claims I am not prepared to reject the evidence of Commander Sadleir or to find his evidence untruthful. I have carefully considered his evidence and his demeanour during the course of giving evidence and found him to be a truthful witness. The specific claims of sexual harassment often appeared in my view to be vague and lacking in particulars. Whilst I have little doubt that the Applicant has a clear perception of unlawful discrimination arising under the SDA, I do not accept that Commander Sadleir used the expression "fucking useless" towards female officers generally. He acknowledged that he had used the term specifically on one occasion overheard by LCDR Fahy. I accept that evidence but further accept that that alone does not provide a sufficient basis upon which the application in this case can succeed upon the claim of unlawful discrimination arising out of the SDA. The reference was not made towards the Applicant and I do not accept that the Applicant has discharged the onus upon her to the requisite standard of proof that the comments were made generally to female officers.

My assessment of Commander Sadleir is that he would no doubt present as a demanding and forceful personality who was operationally based. He clearly worked in a challenging and no doubt at times frustrating environment. From time to time I accept that he would have expressed frustration in strong terms which may well have involved the use of inappropriate language. However, that finding does not then lead to a finding in favour of the specific claims made by the Applicant of unlawful discrimination. In my view it is more likely than not that Commander Sadleir would have been demanding and outspoken in relation to any person, male or female, under his command. I accept the evidence of Commander Sadleir in relation to the claims made arising out of the treatment of Douglas compared with the Applicant and other women. It is legitimate for him to distinguish between the powers he may have over a civilian member of staff compared with powers he may exercise over military personnel. Military personnel are required to obey lawful commands and are subject to naval processes. I do accept that any unlawful discrimination has arisen in the manner in which Commander Sadleir dealt with Douglas. I further do not accept the other claims of unlawful discrimination under the SDA. In particular I do not accept the evidence concerning other claimed statements by Commander Sadleir which he has denied whereby he allegedly said something like, "That women were there to look attractive for him and his mates or that he was the envy of other mates on the base because he had three blonde officers working for him." The other comment concerning the eating of bananas or carrots being "too much of a sexual turn on" were strongly denied by Commander Sadleir and I am not satisfied that the Applicant has proved those comments were made by him in any event in her presence in a manner which would constitute unlawful discrimination pursuant to the SDA.

Whilst the Court has not been satisfied that the Applicant has discharged the onus of proving unlawful discrimination arising out of the SDA, it should not be thought that naval officers are immune from claims of unlawful discrimination based upon the position held by an officer whether it be a combat or non-combat activity. The outstanding military record of any officer does not provide an automatic defence to any claim of unlawful discrimination. All naval personnel should be accountable for any acts of unlawful discrimination arising out of human rights legislation. No-one in society regardless of position held should be above the law including anti-discrimination laws.

The conclusion of the Court in this application in relation to those claims arising under the SDA is based upon the Court not being satisfied on the appropriate standard of proof that the Applicant has proved the claim of unlawful discrimination arising out of the SDA. The assessment made by the Court is one which requires consideration of the evidence of all the witnesses. Whilst not finding any particular witness had behaved in a "dishonest" manner, it is clear that the Court is not prepared to accept the evidence of the Applicant or her witnesses as a sufficient basis upon which it could make a finding of unlawful discrimination under the SDA nor is it sufficient upon which the Court can conclude that the evidence of Commander Sadleir and other witnesses called for the Respondent should be rejected.

I note in passing evidence relied upon by the Respondent from Ms Read who during the course of her evidence stated, "There was another female in the office that was a civilian and he (Sadleir) was very lovely to her". (Transcript p.375.20).

I accept the submissions made for and on behalf of the Respondent when analysing the development of the evidence of the Applicant concerning the "fucking useless" comment. In my view the correct finding is that it was used on one specific occasion by Commander Sadleir about LCD Fahy. I accept that ultimately over a period of time and indeed when the Applicant's supplementary affidavit was filed it was then alleged that a similar comment had been made by Commander Sadleir in the presence of the Applicant. This evidence emerged in the supplementary affidavit and on the third day of the hearing. I find it implausible that if the comment had been made directly to the Applicant and/or in her presence that she would not have referred to it specifically at the time of making the complaint to HREOC or at the very least in her first affidavit. I find the Applicant's evidence in relation to this comment implausible and otherwise accept as valid the criticisms made of her evidence in this regard in the Respondent' s submissions.

I further specifically reject, to the extent that it sought to corroborate the Applicant's case, the evidence of LCDR Fahy. It is clear that in any event she was not present during the substantial portion of the Applicant's time at HMAS Stirling. It is not for this Court to otherwise explore in detail the evidence of LCDR Fahy given that she currently has a pending application of her own in another court.

I am otherwise satisfied as submitted by the Respondent that the paucity of the evidence produced by the Applicant combined with the denial by Commander Sadleir should lead the Court to conclude that the Applicant has not discharged her onus of proof in relation to the SDA claims.

In my view the claims made under the SDA have not been proved and should fail. In making that finding the Court does not conclude that the Applicant and her witnesses were necessarily witnesses who failed to do their best to give a truthful account of the events which allegedly occurred more than five years ago. However, in the absence of persuasive corroboration and against the backdrop of strong denials from a witness who I accept to be a witness of truth, namely Commander Sadleir I am not satisfied that the Applicant has discharged the onus of proof in relation to the SDA claims. The perception of the Applicant and other witnesses regarding the past events, whilst no doubt genuinely held do not provide me with a proper basis upon which I can make a significant finding of unlawful discrimination arising out of the SDA.

Given that the Court is not satisfied that the Applicant has discharged the onus of proof in relation to the claims made under the SDA, it is not necessary for the Court to then further consider the question of whether or not the Respondent has complied with appropriate protocols when dealing with any complaints of sex discrimination.

The evidence concerning a diary note of Captain Di Pietro did not advance the case any further given his denial of the meaning of what was claimed to have been written by him in the diary. He denied that any entries concerning harassment or bullying referred to the Applicant.

Disability Discrimination Act Claim

The details of this claim have been set out earlier in this judgment when considering the Amended Application.

In her first affidavit (Exhibit A1) the Applicant in support of her claim of unlawful discrimination under the DDA relevantly deposes as follows:-

"27. During my time at Port Services, I was also discriminated against on the basis of my disability. I was made to feel guilty by LCDR Sadleir for requesting time off to attend medical and counselling appointments.

28. In April 2000 I was required by Dr Srna to attend a two week behavioural therapy course and thereafter to have convalescent leave. The aim of such treatment was to address my anxiety and depression and to assist in a positive return to work.

29. Upon reporting for duties again on or about 1 May 2000, I was told that I had been removed from my position as Fleet Support Officer to an additional position with the Command Element at HMAS Stirling. This move was made without consultation with me. I was posted to the Public Affairs Office as an odd jobs person, working with two civilians. This was in effect a demotion.

30. No reasons were given to me for my re-posting and I had not previously been counselled on my performance. I do not know how or why I came to be transferred out of Port Services. I believe that LCDR Sadleir spoke to my Posting Officer, LCDR Jaeger, about my condition and caused me to be removed from my position without my consent or any medical advice as to its impact on my recovery."

It should be noted that in that extract the reference to "April 2000" should read "May 2000".

In her supplementary affidavit the Applicant expands upon the disability claim in the following terms:-

"12 In relation to paragraph 27 of my earlier affidavit I say further that the only times when I asked for time off were for my psychiatric appointments and that on these occasions LCDR Sadleir rolled his eyes, swore and exhaled in exasperation. It made me feel anxious and I hated asking for time off.

13. In relation to paragraph 29 of my earlier affidavit I say further that my posting to Command Element at HMAS Stirling was effectively a demotion because I was a 'dog's body'. I was made 'Additional'. This is to be distinguished from a billet posting, which is a critical job. An 'Additional' posting is not a defined operational position for a particular task. If an officer were made 'Additional' it would be perceived as a step towards leaving the Navy. At the academy we used to call them 'squeezes', that is, members who were trying to squeeze out of doing any work.

14. At Command I was given some tasks that were general officer-type things such as a minor investigation of a car accident. However, I was also required to do tasks that a junior non-commissioned sailor or even a high school student might be expected to do, such as put up displays for a museum exhibition, which involved putting bands from sailors hats onto felt on the museum wall and I had to move, sort through and unpack boxes of museum relics. I was in no way working to full capacity. I invented things to do to keep myself occupied such as creating filing systems and auditing the stationery cupboard. I arranged a ball and other projects for a number of different members. I was not working in a public affairs capacity despite having my desk there. Actually, it was not so much a demotion as a demoralisation."

It is noted that in relation to the Applicant's disability, apart from the classifications referred to earlier in this judgment when setting out the background facts, evidence was also adduced on behalf of the Applicant from a consultant psychiatrist Dr Anthony John Mander who also gave evidence. He concluded the Applicant continues to suffer post traumatic stress disorder secondary to what he describes as the "traumatic events occurring while undertaking service with the Royal Australian Navy significantly worsened by the failure of the Navy to provide an adequate environment for her treatment and rehabilitation." (Exhibit A10 paragraph 32)

Dr Mander first saw the Applicant in October 2004 when he noted that her "post traumatic stress disorder" was "under control and in many ways she is functioning well". In his affidavit he further goes on to state,

"However she is left with some significant distortions about the possible intentions of men that she comes across."

After the first consultation he recommended ongoing treatment, However, he did not see her again until May 2005 for the purpose of providing an updated report. He gave detailed evidence concerning the Applicant's condition.

In my view the major claim arising out of the DDA presented by the Applicant appears to be the transfer of the Applicant out of the Port Services office. The circumstances surrounding that transfer were referred to earlier in the extracts from the Applicant's affidavit material.

Essentially, it is asserted that on 13 April 2000 being the first day of the Applicant's sick leave, Commander Sadleir had requested the Career Manager at the Directorate of Naval Officer Postings namely Adrian Jager to transfer the Applicant out of the Port Services office. The transfer was referred to in the first affidavit of Commander Sadleir (Exhibit R17) where he deposes in paragraphs 38 and 39 the following:-

"38. I recall contacting Lieutenant Wiggins at home to discuss her unexplained absence from the workplace. I remember making several phone calls and finding it difficult to contact her. When I did speak to Lieutenant Wiggins she explained that she was on sick leave and that she would be on leave for at least two weeks. She indicated that she did not know when she would return but that she could potentially be absent for much longer. This concerned me because I needed someone in the Fleet Support Officer's position who attendance could be guaranteed.

39. Following my discussion with Lieutenant Wiggins I contacted the DNOP and expressed my concern that Lieutenant Wiggins may require further leave from the workplace and her attendance could not be guaranteed. I advised DNOP that I needed someone in the officer who could be relied upon to attend work and I indicated that Lieutenant Wiggins' unpredictable absences were impacting on my already under-staffed team. I advised DNOP that I needed more staff to fulfill the Fleet Support Officer duties and others. My reason for calling DNOP was to have the staff shortages addressed. It was not to have Lieutenant Wiggins posted elsewhere."

In relation to the concept of an "additional position" referred to by the Applicant as being effectively a demotion, Commander Sadleir in his supplementary affidavit (Exhibit R18) relevantly deposes as follows:-

"12. ... The suggestion made by Ms Wiggins that an 'additional' position is somehow related to leaving the Navy is not accurate and nor, from my experience, is it generally perceived that way. Officers are often posted as 'additional' where extra staff are required to perform a particular function. Often these functions are critical despite the fact that they are being performed by personnel who are not attached to a particular billett. For example, specialist personnel being deployed in ships to the Gulf may be listed as additional. Teresa Jackson was posted as additional to Port Services during Ms Wiggins' posting at Port Services. Her responsibilities included creating budgetary procedures for Port Services which I considered to be crucial (as did command). The term 'additional' is purely administrative and not reflective of relative importance to the organisation."

The issue was canvassed further during the course of evidence. The Applicant in her evidence in chief relevantly stated the following:-

"Now, this is the period before your transfer or around the time of your transfer, Ms Wiggins, from Port Services; okay. Lieutenant Commander Sadleir says that you commenced an extended period of sick leave in the middle of April and that he says he recalls contacting you at home to discuss your unexplained absence from the work place. Now, the first thing I want to ask you is do you recall Lieutenant Commander Sadleir contacting you at home at any time after the middle of April 2000 to talk about your absence from the work place?---Not to talk about the absence from the work place.

Right. So did he contact you at all at home after the middle of April 2000?---Yes, he did.

About when did he call you?---The week after - the week commencing 16 May."

(Transcript p.169 lines 31-44)

The issue was further canvassed during the course of cross-examination concerning the reposting of the Applicant. Some discrepancy appeared to arise from the Applicant's affidavit material in following exchange:-

"MR BROMBERG: Thank you. You denied having a conversation with Commander Sadleir dealing with that subject matter but you said that you did have a conversation with Commander Sadleir in the week commencing 16 May when he told you of your re-posting to a new position out of Port Services. That was your evidence, wasn't it?---Yes, it was.

You went on sick-leave on 13 May, do you agree with that?---I'm unsure, I don't remember going on sick-leave at that time.

The evidence of Commander Sadleir is that he rang you in mid May - I'm sorry, I think I said - I will start again. You went on sick-leave on 13 April, didn't you?---And I state again I don't remember.

Well, the evidence, I suggest to you, will show that you did. What I am suggesting to you is that either that day or the next day Commander Sadleir rang you and spoke to you about sick-leave?---Incorrect.

What you said in your evidence is that you only had one conversation with Commander Sadleir whilst you were on sick-leave and before you returned back and do you say in that conversation only the subject matter of your re-posting was addressed?---Correct.

Commander Sadleir never told you about your re-posting at all, did he, whilst you were away from work?---Yes, he did.

You didn't know that you had been re-posted until you came back to work on 22 May, did you?---Incorrect.

So that when you tell us that at paragraph 29 of your statement you have told us a lie?---Incorrect.

Paragraph 29 in your statement says:

Upon reporting for duties again on or about 22 May 2000 I was told that I had been removed from my position as Fleet Support Officer to an additional position with the Command Element at HMAS Stirling.

?---That's correct.

You were told that you had been re-posted on 22 May, weren't you?---Incorrect. That's when it was formally confirmed to me.

You had no idea about any re-posting until you turned up on 22 May and that is your evidence in your statement?---Incorrect.

Well, why does your statement not tell us that you had prior warning of your re-posting prior to 22 May, Ms Wiggins?---I don't know."

(Transcript p. 263 line 25 to p.264 line 24)

A somewhat further confused exchange occurred during the course of cross-examination as follows:-

"You complain here that you had been posted without his consultation?---Correct.

Without having spoken to him?---Correct.

You complain that you were stunned at that turn of events?---Correct.

That indicates, doesn't it, that you did not speak to Commander Sadleir about your posting, and that you were stunned on your return to have found that you had been re-posted?---That's an interesting interpretation of this paragraph, but that's incorrect."

(Transcript p.268 line 41 to p. 269 line 4)

It is important in the context of this part of the claim to consider the evidence of other witnesses including Mr Jager.

Adrian Jager was an officer in the Navy from January 1992 until January 2003. Prior to his resignation he held the rank of Lieutenant. He adopted an affidavit affirmed by him on 26 October 2005 (Exhibit R26). In that affidavit he deposed that he had been posted to the Directorate of Naval Officers Postings (DNOP) as a staff officer (Seaman 3). His role as a staff officer involved the management of the careers of approximately 350 junior officers. The task involved liaising with officers about their career objectives and arranging for postings which he claimed were to be "consistent with their aspirations and the requirements of the Navy".

Mr Jager at the time of the hearing was employed as a Consultant with a private company.

In his affidavit sworn 26 October 2005 (Exhibit R26) he deposed at [4] as follows:-

"I was guided in my duties by the 'Australian Book of Reference: RAN Officers Career Management Manual' (ABR 6289) which was issued by the Chief of the Navy."

Mr Jager referred to his responsibilities in relation to the Applicant and specifically made reference to her posting to HMAS Stirling. Significantly he deposes at paragraph 10 of his affidavit the following:-

"10. While I was aware at the time of her posting to HMAS Stirling that Lieutenant Wiggins had a medical condition which rendered her unfit for sea duties, I was not aware of the specific nature of that medical condition. It was not Navy policy to disclose such information to the Staff Officer, except in the unusual situation where specific medical information was required to enable an appropriate posting."

In relation to the posting of the Applicant from the position in Port Services to the "additional position" at the Command Centre at HMAS Stirling Mr Jager in his affidavit at paragraphs 12 and 13 relevantly deposes as follows:-

"12. I was also responsible for Lieutenant Wiggins' subsequent posting from Port Services to an additional position at the Command Centre at HMAS STIRLING.. Lieutenant Wiggins' Historical and Service Records show that this posting occurred on 1 May 2000 following a posting order on 20 April 2000.

13. The circumstances in which Lieutenant Wiggins was posted from Port Services to the Command Centre were as follows.

13.1 I was initially contacted by Lieutenant Commander Sadleir around 14 April 2000 in relation to staff shortages at Port Services. Lieutenant Commander Sadleir advised me, amongst other things, that Lieutenant Wiggins was on sick leave and that she may be absent from the workplace for an indefinite period. In that conversation Lieutenant Commander Sadleir expressed concern about the impact that Lieutenant Wiggins' absences from work would have on Port Services. Lieutenant Commander Sadleir told me that he was anxious to have more staff, and expressed concern over whether the other staff in Port Services would be able to cover Lieutenant Wiggins' duties in her absence. Lieutenant Commander Sadleir also queried whether he would be able to provide appropriate support and management to Lieutenant Wiggins if she returned given that his own duties required his frequent absence from the base.

13.2 As her career manager I was concerned about Lieutenant Wiggins. While I was not aware of Lieutenant Wiggins' specific illness, I was aware that she had a medical condition and that she may have required further leave and medical treatment. Rather than relying solely on the information given to me by Lieutenant Commander Sadleir that Lieutenant Wiggins' leave was likely to be 'indefinite', my normal practice would have been to attempt to confirm the information that he had provided to me with relevant medical staff and the individual. While I do not recall speaking to medical staff or Lieutenant Wiggins, I can see no reason why I would have departed from my normal practice in this case.

13.3 What I can recall is that, given all the information made available to me at that time, I made the decision to try and find Lieutenant Wiggins a more suitable position at HMAS STIRLING. I tried to find her a position in which she could be supported and managed more effectively by someone who had fewer absences from the base, which had less pressure and more flexibility, and which could more readily accommodate any required absences from the workplace. I attempted to find Lieutenant Wiggins an alternative suitable position at HMAS STIRLING because I knew that her preference was to remain in Western Australia and a posting on the same base was less likely to impact on her personal situation. I was aware that Lieutenant Wiggins had not been at the base for very long and that a move to another base could have been disruptive. I was mindful of the advantages of securing Lieutenant Wiggins an additional position in the Command Centre at HMAS STIRLING in enabling more effective management, receipt of treatment from the same medical facilities, and minimising disruption to her personal life.

13.4 Before posting Lieutenant Wiggins to an additional position at the Command Centre, my normal practice would have been to discuss the situation with either the Commanding Officer or the Executive Officer. I would normally have asked whether there were suitable duties available for the officer to perform and I would not have proceeded with the posting unless I had received assurances that there was appropriate work for her to do. Annexed and marked "AJ-4" is a true copy of the signal that I sent in relation to Lieutenant Wiggins' proposed posting on 14 April 2000. While I cannot recall the conversation, the posting order confirms that I had a teleconference with the Executive Officer of HMAS STIRLING on the afternoon of 14 April 2000 prior to organising Lieutenant Wiggins' posting to the Command Centre.

13.5 I do recall attempting to contact Lieutenant Wiggins to discuss the proposed posting, prior to its commencement. While there was no requirement for me to contact an officer prior to arranging a posting, it was my usual practice to do so. In this case, I remember attempting to contact LT Wiggins by telephone but being unable to do so. Eventually, when I had not heard back from Lieutenant Wiggins, I proceeded with the posting based on the information available to me."

Mr Jager asserted that the posting on 1 May 2000 of the Applicant was conducted in accordance with the Australian Book of Reference RAN Officers Career Management Manual and he claims it took into account both the interests of the Applicant and those of the Navy. He relevantly states at paragraph 14 of his affidavit,

"14. Lieutenant Wiggins' posting on 1 May 2000 was conducted in accordance with Chapter 7 of ABR 6289 and took into account both Lieutenant Wiggins' interests and those of the Navy. Lieutenant Wiggins was transferred at level with the same rank and entitlements. This was by no means a demotion."

He denied being directed to make the decision by Commander Sadleir. The Applicant submitted that the posting to the Command Centre at HMAS Stirling was discriminatory on the grounds of the Applicant's disability. It was submitted that the Applicant was on convalescent leave from 13 April to 20 May 2000 and while on leave she was informed that she was to be transferred out of the Port Services office and without prior indication or discussion this was confirmed upon the Applicant's return to Port Services. Reliance was placed upon the Applicant of evidence from LCDR Fahy who claimed to have been told by Captain Di Pietro that the Applicant was removed from her billet because she was suffering depression and that "the Port Services Manager does not want Lieutenant Wiggins in his office". The evidence of LCD Fahy was also relied upon to the extent that she allegedly intimated that Di Pietro thought that the Applicant's depression "was a ploy to avoid sea service". The Applicant submitted that in the circumstances Mr Jager had failed to obtain necessary information about the Applicant's medical condition and had failed to ensure that Commander Sadleir had sufficient information about the Applicant's condition to enable him to make special provision for her disability. Although it was conceded that Mr Jager was not aware of the specifics of the Applicant's disability, he knew that she was classified as "category 6". It was submitted he did not seek access to her previous medical report which had prompted the posting initially to HMAS Stirling. It was submitted that he could have made further enquiries of the Applicant and her medical advisers but did not do so. During the course of his evidence under cross-examination Mr Jager when asked whether he could have obtained other information indicated that he did not know (Transcript p.767). However he conceded that if medical in confidence information was available then with the consent of the Applicant that material could have been obtained (Transcript p.766.36-44).

The Applicant submitted the Navy should have ensured that Mr Jager had access to relevant information to at least put him on notice that he should make further enquiries concerning the Applicant's medical condition and expectations at her prospective post.

It is noted in passing that there seems little dispute that Commander Sadleir did not have accurate information concerning the Applicant's condition. Although there is some uncertainty about the information I am prepared to conclude for the purpose of this part of the judgment that the Applicant herself was not fully aware of the nature and extent of her condition when she commenced under the command of Commander Sadleir and hence did not give him precise details of her depressive illness. I further accept however that Commander Sadleir did not make any further enquiries.

Some reliance was placed upon the evidence of the Applicant regarding Commander Sadleir's response to the Applicant taking time off.

Further criticism was made of the failure of the Respondent to provide proper support to enable the Applicant to recover from her disability and mention again was made of Commander Sadleir's outspoken or forthright manner and that Captain Di Pietro was aware of that.

The Respondent submitted that it is not disputed the Applicant had a disability at the relevant time and that she was transferred but further submitted that the Applicant needs to prove that she was transferred because of her depression and that it is common ground that that could only be established as referred to earlier in this judgment if the discriminator was aware of the disability (see Tate v Rafin). Further, it was argued that the Applicant should establish that the transfer constituted less favourable treatment of the Applicant by Mr Jager than his treatment of an officer without depression and that that less favourable treatment was in the terms or conditions of employment afforded by the Applicant. It was argued that the officer making the decision to transfer the Applicant was Mr Jager who was not aware that the Applicant suffered from depression.

It was submitted and I accept that in relation to this issue the evidence of Captain Di Pietro regarding his belief or what he may have said is irrelevant as he did not play a part in the decision-making process concerning the Applicant's transfer.

It was specifically submitted that the Navy does not replace Mr Jager as the actual decision-maker in the context of this complaint. The maintenance of information in a file it was argued does not equate to operational practical use in the hands of the discriminator. The possession of the information by the Navy it was argued does not amount to knowledge of the discriminator applied in an operational or practical sense. It was further submitted the Navy is not the alleged discriminator and was not the perpetrator of the impugned act of transferring the Applicant. Whilst accepting vicarious liability if the act is found to be unlawful it was submitted on the evidence any impugned act was that of Mr Jager and as the discriminator it is submitted he did not act by reason of the disability as he had no actual knowledge of the disability.

In the alternative it was submitted that even if it could be established that Jager could be deemed to have known of the Applicant's condition the claim would fail in the absence of any challenge to Mr Jager's evidence that the decision was based on operational considerations. Those operations considerations concerned evidence from Sadleir about staff shortages and his motivation and Jager's evidence that he was motivated by operational concerns communicated to him by Commander Sadleir.

The Court was invited to compare the treatment of the Applicant with the treatment that would be given to a person without a disability and it was submitted that given the transfer occurred because of the Applicant's absence as distinct from her depression prompted the transfer that it follows the treatment would have been to an officer who was not disabled but who was similarly absent for an uncertain period causing a similar impact on the operation of Port Services.

It was further argued that the transfer in any event did not result in less favourable treatment being afforded to the Applicant than that which would have been afforded to another officer without depression in circumstances that were the same or not materially different. Hence even if the Applicant could establish that the transfer was because of her disability she has not established she was subjected to less favourable treatment. Her perception of being posted as an "additional" being inferior does not, it was argued, establish less favourable treatment.

Reasoning and Findings - Disability Discrimination Claim

There is no dispute that at all relevant times the Applicant suffered from a disability and it is appropriate that that disability be referred to as depression.

In my view the key issue to be determined in this part of the claim is whether the Applicant's transfer to Command Centre could constitute unlawful discrimination for the purposes of the DDA.

I accept the summary of the matters to be proved by the Applicant in order to support the claim under the DDA. There is no dispute as indicated that she had a disability at all relevant times and that she was transferred.

In my view as indicated earlier in this judgment the discriminator is the Navy and it is evident that in this instance the decision maker in relation to the transfer I accept was Mr Jager. I further accept however that at all material times he had the opportunity to obtain and disseminate information of a confidential medical nature concerning the Applicant's depressive illness. He chose not to do so. He made no attempt to seek the consent of the Applicant which he concedes was something he could have done had he chosen to do so.

In circumstances of this kind where employers have knowledge of an employee's medical condition particularly where that condition is of such significance that it requires in this instance the employee to be transferred from off shore to on shore duties, it is incumbent in my view upon the employer to at least endeavour with the consent of the employee to provide relevant details of the condition to those persons under whom the employee is supervised. In the circumstance of this case I can see no reason why Mr Jager could not have sought permission of the Applicant to access her medical files and then with her permission to convey that detail to Commander Sadleir. Had he done so then any difficulties or tensions which may have arisen and which I am satisfied did arise in relation to the absences of the Applicant caused directly by her disability and the requirement for convalescence and treatment.

In my view Mr Jager should be deemed to have known that the Applicant was suffering from depression and at the very least an illness of a kind which required restrictions to be placed upon her ability to fully perform her duties as a naval officer at sea. That in my view is sufficient to establish knowledge in the mind of the discriminator of the disability of the Applicant. I reject the submission of the Respondent that the Navy does not replace Mr Jager as the actual decision-maker in the context or that the maintenance of information in a file does not equate to operational or practical use in the hands of the discriminator. In my view that is an artificial distinction which should not be permitted in discrimination under human rights legislation. To do so would effectively provide immunity to employers who could simply regard all confidential information not disclosed to supervisors as then providing a basis upon which it could be denied that employees as discriminators would not be liable and hence liability would be avoided by the employer. That is not an appropriate outcome in circumstances where I am satisfied in any event that Mr Jager had deemed knowledge and the Navy who I have found ultimately to be the discriminator vicariously liable for the conduct of its employees in this regard clearly had actual knowledge based upon the official medical records in its possession relating to the Applicant.

I am further satisfied that in the circumstances Commander Sadleir in the absence of any direct knowledge of the extent and nature of the Applicant's condition was anxious to find a replacement for her given his staff shortages. He requested her transfer and that request was met. Had he known of the full extent and nature of the Applicant's condition then perhaps he might have requested additional staff to assist rather than achieve the result of the Applicant being transferred out of Port Services into another position. That is another staff member may have "filled in" for the Applicant during the course of her rehabilitation and medical treatment.

I reject the submission by the Respondent that the transfer was not due to depression but rather due to her absence. In my view the absence was clearly due to the depression and the submissions by the Respondent seeking to distinguish the absence from the disability should not be permitted. The leave taken by the Applicant I am satisfied was due almost entirely to her depressive illness for which she required treatment. It is inextricably related to her disability and in turn it was the disability which effectively caused the concern for Commander Sadleir and led to the transfer.

I am further satisfied that the transfer to what is described as an "additional" by its very nature was correctly perceived by the Applicant to be a demotion. Whilst technically the Applicant continued to receive the same pay I have little doubt that the perception of both the Applicant and no doubt others in the Navy would consider her transfer after a short period at Port Services to be effectively a demotion. The description of the Applicant's duties in this "additional" position satisfies me that those duties compared with the duties she previously experienced provided a satisfactory basis upon which the Applicant concluded that this was "in effect a demotion". (see paragraph 29 Exhibit A1)

In my view after a short time of service in Port Services as Fleet Support Officer the transfer of the Applicant to the additional position at the Command Centre could properly be regarded as a demotion or at the very least as ultimately conceded by the Applicant in her supplementary affidavit as "not so much a demotion as a demoralisation". The terminology in my view at the very least, whether regarded as demotion, which in my view I have found it clearly represents, or simply as "a demoralisation" nevertheless constitutes what I conclude to be less favourable treatment. I do not accept that another naval officer without a disability would have been treated in this manner after such a short period of service as Fleet Support Office at HMAS Stirling. The transfer directly relates to a condition of employment for the purpose of the DDA and/or constitutes a limitation on the opportunity for promotion or other benefits associated with employment. In the alternative I am satisfied that it constitutes subjecting the Applicant to what is described as "other detriment" for the purpose of the DDA.

Whilst I accept that there was no serious challenge made to Mr Jager's credit that does not mean that the Court is bound to accept his assertion that the transfer of the Applicant was for "operational" reasons. The background and context to this transfer clearly arose from the sick leave taken by the Applicant directly as a consequence of her disability and could not be properly characterised as a decision based simply on "operational" grounds. The reality is that the Applicant had a depressive illness which constituted a disability and that in turn had prompted a significant medical restriction imposed upon the Applicant rendering her unfit for sea duty and fit for shore duty. It was that condition which led her to seek medical treatment and to be absent on sick leave which I am satisfied was the reason which led to the request for her transfer. The transfer in those circumstances in my view would not have occurred in circumstances where an officer was not disabled.

I note in passing that an attempt was made to define "additional" as being purely "administrative and not reflective of relative importance to the organisation". Commander Sadleir also gave evidence in relation to the term on the basis that officers are often posted as "additional" where extra staff are required. That in my view is not helpful to the present analysis where the Applicant in this instance for a short time had been posted to the significant position of Fleet Support Officer at HMAS Stirling only to find that due to her disability requiring an absence for medical treatment she was then transferred to the "additional" position which in her case I am satisfied effectively meant a demotion. Whilst the term "additional" may not in other circumstances mean a demotion, I am satisfied on the material before me that in this case it did mean a demotion for this Applicant.

I am otherwise satisfied therefore that the Respondent has acted unlawfully in discriminating against the Applicant in her employment on the grounds of her disability in contravention of s.15(2)(a), (b) or (d) of the DDA and that it is appropriate to make a declaration accordingly.

In my view there is evidence of unlawful discrimination based on the claims relying upon provisions of the DDA which arise in relation to the disability, namely, depressive illness, and the different treatment; namely, her sick leave which led to adverse comments and removal from her post without consultation.

It is a pity that Mr Jager did not contact or attempt to contact Mr Sadleir or Mr Di Pietro to alert them to the nature of the Applicant's illness prior to her posting at HMAS Stirling. Of course the Applicant's consent to the release of confidential medical information may have been required. If it had been refused, then at least the officer in charge or the commanding officer would have been assured that the condition suffered by the Applicant would require frequent medical treatment at short notice and sometimes of unspecified duration.

A backup officer or other assistance could have been provided to the base to ensure full support to Mr Sadleir and the base, and, of equal importance, guarantee that the posting of the Applicant would be successful as she could seek and obtain treatment as required without fearing loss of the posting or criticism. She would know that the temporary inconvenience to the human resource management of the base would be minimised.

There has been a failure to communicate, and one suspects that Mr Jager was more interested in finding a place for an officer declared unfit for sea duties rather than putting in place a process for the parties which was appropriate for where the Applicant actually worked. It was a correct choice managed incorrectly, as it resulted in unlawful discrimination in the manner described, namely, the attitude of others towards the Applicant's sick leave, and that she was shifted from her post without consultation.

Another officer, in my view, who did not suffer from a disability, would not have been shifted without consultation.

I am not satisfied that the claims otherwise relied upon arising out of the DDA have been established. In particular having regard to my earlier findings regarding the conduct of Commander Sadleir, I do not accept that any unlawful discrimination arises from either Commander Sadleir's conduct or any failure by the Navy to address his conduct. In relation to the disability claim I am satisfied that he without appropriate and relevant knowledge has simply sought additional staff or replacement staff so that he could adequately perform his duties. Whilst criticism was made of him and his failure to provide appropriate support for the Applicant and indeed a suggestion made that his sole concern was for operational efficiency, it seems to me that that concern was justified in the absence of any further details being provided to Commander Sadleir about the Applicant's condition. I do not accept that those details were provided at any relevant time by the Applicant herself or by Mr Jager.

In considering damages, the authorities clearly establish that a causative link must be established between the unlawful discrimination and the damage now claimed.

In general terms the Amended Application claims damages in relation to the following:-

•

Hurt and humiliation

•

Medical expenses

•

Loss of career and career expectations

•

Future earnings

•

Costs of re-training.

In the assessment of damages some caution should be exercised so that the damages should not be excessive nor on the other hand so low as to diminish respect for public policy to which the legislation gives effect. (See Hall v Sheiban [1989] FCA 72; (1989) 20 FCR 217; Alexander v Home Office (1988) 2 All ER 118).

In her affidavit (Exhibit A1) the Applicant expresses concern at not receiving what she describes as support and structured response to her complaint and seems to focus on that matter which in this case I have not found direct discrimination under the SDA. It should be noted the findings are confined to unlawful discrimination arising under the DDA. The Applicant does indicate that her experience at Port Services leading up to her resignation exacerbated her expression and made her doubt her own ability. She refers to a loss of her career expectations and otherwise seeks to set out the cost of her re-training as a physiotherapist as part of the claim. That cost included a Masters course for which she was required to complete pre-requisite subjects in psychology, human biology and anatomy over a two semester period at a cost of $3,605.86. She accumulated a Higher Education Contribution Scheme (HECS) debt claimed to be in the amount of $39,000. She claims to have further incurred expenses for text books and uniforms in excess of $2,000. She calculated her expense of re-training as a physiotherapist to be approximately $44,605.86. She otherwise set out details of claimed loss of income by comparing her income during employment with the Navy with her income during the financial year following resignation from the Navy. Her notice of assessment for the financial year commencing 1 July 2001 and ending 30 June 2002 reveals a taxable income of $48,114.00. Her taxable income for the year ending 30 June 2003 was $7,042.00 and for the year ending 30 June 2005 was $6,586.00.

The Applicant claimed that the expense of re-training as a physiotherapist was a total amount of $131,991.00 which she calculates on her salary at the date of resignation for the period of re-training less any income she earned. She claims that was a "conservative calculation". She otherwise claims to have lost long service leave benefits upon resigning from the Navy together with superannuation entitlements. Since 16 May 2005 she commenced a contractor position as a physiotherapist in a hospital with weekly earnings in the amount of $595.15 net. She claimed she continued to suffer economic loss flowing from her resignation from the Navy. She otherwise did not specify the medical expenses in detail save for producing a list of medical expenses incurred (Exhibit KW13 to her affidavit Exhibit A1) showing a total of $1,700.00 for a variety of medical treatments.

It was submitted on behalf of the Applicant that she had excellent prospects for advancement in the Navy and arguments were advanced that the Applicant attempted to find employment after her resignation from the Navy before re-training as a physiotherapist. Reference was made to the claimed expenses and lost income and entitlements as a result of leaving the Navy and re-training as a physiotherapist.

The Respondent submitted that the Applicant in order to recover any loss occasioned by leaving the Navy should prove on an objective rather than subjective basis that she had no alternative but to resign because continuing in that employment would have subjected her to ongoing discrimination. No attempt was made to establish that contention, it was argued, and further arguments were advanced that the Applicant had decided to leave the Navy for other reasons. Further it was submitted and I accept that the Applicant could only recover compensation for economic loss if she took all reasonable steps to mitigate her loss. It was submitted the evidence produced by the Applicant about her earnings in mitigation was deficient as it did not provide precise information for work she undertook as a personal trainer or details in relation to other jobs she performed. She acknowledged that former naval officers can undertake a variety of administrative and management roles in the private sector. The Respondent submitted that evidence was substantiated by the position of Mr Jager who is now in private sector employment and the Court can have regard to the transferable skills of naval officers to the private sector. It was submitted that the evidence from the Applicant of her minimal efforts to seek alternative employment established that she failed to take reasonable steps to mitigate her loss. I accept that submission and I specifically find that she has chosen instead as submitted by the Respondent to embark upon a new and significant career involving costs and expenses associated with the education to achieve that career.

The Respondent further submitted that the Applicant's claims for economic loss were not supported by appropriate evidence. Documentary evidence did not support claims for uniforms and text books nor there is evidence concerning superannuation and long service leave entitlements. The costs associated with medical treatment it was argued was misleading and wrong as a substantial portion of those costs involve costs for producing a report to the court which could properly be regarded as disbursements. I agree with that submission.

It was submitted by the Respondent that the claim for compensation for distress and upset should fail. It was argued the depression was not caused by her experience at Port Services as it existed and had been diagnosed and treated prior to her posting at Port Services. Whilst the condition deteriorated between March and September 2000 it was argued that occurred because she did not respond well to the appropriate treatment.

Damages, in my view, should be restricted to the period of employment which the Applicant would have otherwise completed in the Navy. Retraining after her due completion date is a matter of personal choice. There is little evidence of how the Applicant coped throughout her course undertaken after she left the Navy. She successfully completed her masters course and qualified as a physiotherapist.

The salary difference between her salary as an officer in the Navy and income earned as a physiotherapist, whilst superficially an attractive basis of assessing damages, in my view would only be available where it could properly be said that the Applicant did not exercise any choice as to her future civilian career path, which clearly in this case has provided an excellent long-term future.

The Applicant presented as an impressive witness to the extent that she clearly has an ability to pursue, as she has done, tertiary studies leading to what can only be described as a significant professional vocation.

I am not satisfied on the balance of probabilities that the Applicant would have stayed in the Navy, particularly where there was no immediate prospect of a medical clearance permitting her to advance her career in the Navy in seafaring duties.

Unfortunately the damages in this instance appears to be the neglected child of this litigation. No attempt was made to distinguish the damages which might flow from a finding of unlawful discrimination arising under the DDA. Instead a general claim was made in relation to damages which might flow from all claims. It is the Court's task to determine as a matter of causation those damages which might flow from the finding that there has been in this instance unlawful discrimination as set out earlier in this judgment.

It is clear that the Applicant has successfully undertaken tertiary studies leading to a significant qualification to practice as a physiotherapist. There is no evidence before the Court that she has been unable to successfully complete those studies nor is there any evidence to suggest that she is unable to conduct herself in an appropriate and professional manner in the discharge of her duties as a physiotherapist.

However, it is clear that in assessing damages the Court is entitled to take into account the hurt, humiliation and upset when assessing the damages and that in a similar way to common law claims the Court should consider making an assessment of the victim as the perpetrator of unlawful discrimination finds the victim. In this case the Applicant at the relevant time was recovering from significant medical illness namely depression.

In the circumstances I am not satisfied that there has been a demonstrated need for ongoing medical treatment and do not accept that the lack of treatment is due to financial circumstances particularly given the Applicant is gainfully employed and like other citizens would be able to access medical facilities either as a public or private patient, I nevertheless accept that for a period of approximately 12 months after discharge from the Navy the Applicant still suffered hurt, upset and humiliation as a result of the unlawful discrimination arising under the DDA.

The failure to continue the service in the Navy does not mean that automatically damages should be awarded on the basis of a difference between income which could have been earned in the Navy compared with the income currently earned by the Applicant as a physiotherapist. I accept the Applicant suffered from depression prior to the incidents claimed to have occurred at HMAS Stirling however I am satisfied that that pre-existing depression was aggravated and that the aggravation thereby continued for a period of approximately 12 months after discharge from the Navy. In part I accept that the Applicant continued to suffer what properly would be described as hurt, humiliation and upset as a result of the unlawful discrimination arising under the DDA.

For the upset and humiliation it is my view that the more significant period of time when the Applicant as a result of the unlawful discrimination arising under the DDA is approximately a period of 12 months after resignation from the Navy. It is clear that thereafter the Applicant upon filing her complaint with HREOC has continued to feel aggrieved of the result of the wide range of allegations which she made against the Navy and the naval officers referred to in this judgment. However her sense of grievance based upon which I have found to be her perception of unlawful discrimination particularising under the SDA cannot form in my view a part of the damages awarded under the HREOC Act for what I have found to be unlawful discrimination under the DDA.

Again doing the best I can in the circumstances and recognising that unlawful discrimination arising under the DDA for a person suffering from depression, requiring medical treatment and consequent sick leave is in itself a significant matter which in part could explain the Applicant's reaction to the events, both prior to and after her discharge from the Navy.

I do note however that the Applicant opted to remain as a reserve officer and in those circumstances it is difficult to conclude that she had an ongoing aversion and/or sensitivity to any ongoing relationship with the Navy. Taking that matter into account and also the lack of evidence of ongoing medical treatment, it is my considered view that the damages for hurt, humiliation and upset arising from the claim under the DDA could properly be assessed in the sum of $25,000.

I consider a significant award of damages is appropriate in these circumstances where it would seem that the policy of the Respondent has operated in a manner which effectively permitted the unlawful discrimination to occur. I am further satisfied that a person such as the Applicant suffering from depression is more vulnerable and hence the consequences to that person of unlawful discrimination arising under the DDA could properly be regarded as more significant. It is clear the Applicant continued to suffer for a significant period after her resignation from the Navy and in my view the amount of damages which I have found is an appropriate amount of compensation caused by the discrimination as found by this Court.

Unfortunately the Court has not been assisted by the manner in which the damages claim has been presented. This no doubt has arisen due to the somewhat complicated post discharge history of the Applicant. On the other hand this is a case where the Applicant upon her discharge from the Navy has demonstrated a clear capacity to get on with her life and to successfully pursue what can only be regarded as a significant career in a highly regarded profession. To suggest that the Applicant but for the acts for unlawful discrimination would have continued in the Navy in my view is mere speculation. Likewise it is mere speculation as I was invited to do into the future to somehow undertake a comparative analysis between income currently earned by the Applicant and income which she would have earned had she continued in the Navy. Whilst a career in the Navy may at one stage have been the Applicant's "dream", I am satisfied that prior to the acts of unlawful discrimination which are subject of this application the Applicant for other reasons set out in the medical material and notes to which I have not made detailed reference but which include clear expressions of dissatisfaction with the Navy and a desire to make a new life mean that the Applicant in my view in any event in all likelihood would have resigned from the Navy at or about the time of her actual discharge having served the requisite period of time and in the normal course of events then having been able to resign without penalty.

I shall make an appropriate declaration and an order for damages together with costs after hearing submissions from Counsel.

It is not appropriate to draw any adverse conclusion against the Applicant for failure to pursue internal remedies within the Navy rather than lodge a complaint with HREOC. Both options are equally valid and I do not draw any adverse conclusion against the Applicant for choosing to lodge a complaint with HREOC.

During the course of the hearing reference was made to a minute dated 8 November 2001 from Captain Dietrich to the Applicant (Exhibit A8 p.54). That minute contained the following passage -

"Accordingly it is important that you understand that notwithstanding your complaint you are a serving officer in the Royal Australian Navy and are required to carry out your duties. You are not to use Navy time and resources to seek information from other serving members as this has the potential to place fellow personnel in unacceptably distracting circumstances and comprises the good order of the command and effective management of Navy personnel and units."

The motive for writing that letter is not clear. If it is suggested that unlawful discrimination in the armed forces should be restricted to internal processes, then that view is misconceived. All Australian citizens should have access to the protection provided in Commonwealth human rights laws. This applies to all defence personnel.

Any restrictions in relation to contacting witnesses at work, particularly in the Navy, would be unreasonable as often that would be the only practical way a complainant would be able to gather corroborative evidence.

In this case the Applicant did not provide details of other potential witnesses who may have provided corroboration, nor did she give evidence of attempts to locate and obtain statements of witnesses relating to difficulties encountered at work. No other witnesses were subpoenaed by the Applicant.

Notwithstanding the letter from Dietrich referred to earlier in this judgment, there is no evidence that the Applicant sought statements from other witnesses or would have sought evidence but was unable to do so nor have any subpoenas been issued seeking the attendance of witnesses who may have been able to provide some corroboration of the Applicant's claims under the SDA, hence I conclude that although the letter was expressed in unfortunate and what I regard as inappropriate terms, it has not led to any real prejudice or practical injustice for the Applicant on this occasion.

I certify that the preceding two hundred and ten (210) paragraphs are a true copy of the reasons for judgment of McInnis FM

Paragraph 12 line 5 - delete "motional" insert "emotional"

Paragraph 12 line 12 - insert "on" between the words "down by"

Paragraph 39 line 3 - insert "still" after the quote

Paragraph 45 line 7 - insert "of" after the word "Respondent"

Paragraph 61 line 3 - delete "or" insert "and"

Paragraph 69 line 6 - delete "discriminatory" insert "discriminator"

Paragraph 78 line 7 - delete words "were present"

Paragraph 118 line 3 - Insert "as" before the word "an"

Paragraph 122 line 3 - delete "forced" insert "based"

Paragraph 124 line 2 - insert word "based" between the words "is upon"

Paragraph 128 line 4 - delete "its" insert "her"

Paragraph 130 line 1- delete "has" insert "is"

Paragraph 130 line 2 - insert "of" between the words "onus proof"

Paragraph 168 last line - delete "position" insert "possession"

Paragraph 185 line 4 - delete the words "directly and" and insert "direct discrimination under the SDA."