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

Wiggins v Department of Defence - Navy [2006] FMCA 800 - FMCA 2006 case summary — Zoe

[37]

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:-

[41]

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".

[60]

"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. ..."

[61]

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:

[64]

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:-

[80]

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:-

[99]

"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))

[116]

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.

[131]

"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)

[139]

"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."

[142]

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.

[144]

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.

[145]

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.

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

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Judgment (164 paragraphs)

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