76 The Applicant seeks an award of $10,000.00 on account of aggravated damages by reason of the Respondent's failure to participate in these proceedings, which she has resulted in further psychological harm to her.[51]

77 I have already detailed the Respondent's failure to engage in these proceedings and found that, for the purpose of s 78 of the VCAT Act, the

Respondent conducted the proceeding in a way that unnecessarily disadvantaged the Applicant. I accept that this constitutes aggravating conduct which warrants a separate award of damages.

In addition, in my view there are other aggravating features to the Respondent's conduct which warrant an additional award under this head. In particular:

(a) The Applicant gave evidence that the Respondent told her not to tell anyone what had happened (on the weekend of 14/15 September 2019) when she questioned him, as she had woken up disoriented and confused in a strange hotel without any recollection of what had happened;

(b) The Respondent held a position of authority at the Bistrot, as Head Waiter and then Assistant Manager. In the context of the Respondent's sexual harassment, this placed the Applicant in an extremely vulnerable position by reason that:

(i) The Respondent was known to be close friends of the owners, socialising with them after hours at the Crown Casino; and

(ii) The Applicant was dependent upon her employment income and maintaining her employment with Bistrot;

(c) The Applicant was placed in an extremely vulnerable position by the behaviour of the Respondent on two earlier occasions, detailed in her First Statement. Although she communicated to the Respondent, in terms of her shock and confusion as to what had happened previously, he again took advantage of her trusting nature in an utterly cavalier and deceitful manner; and

(d) Most seriously, the Respondent apparently spiked the Applicant's drink, after she had previously complained to him, when she discovered he had attempted to do this on a prior occasion. The Applicant unwittingly consumed a spiked drink which clearly rendered her incapable of making a conscious and voluntary decision and made her vulnerable to sexual assault.

79 Taking all of the above circumstances into account, in my view it is appropriate to award the sum of $12,000.00 on account of aggravated damages.

80 Finally, in the circumstances of this proceeding, having found the Respondent contravened s 78(1) of the VCAT Act, the Tribunal may under s 78(2)(c) of the VCAT Act exercise its discretion to make an order for costs under s 109 of the VCAT Act.

81 For the reasons given above, the Tribunal is satisfied that it is fair to make an order for costs in favour of the Applicant having regard to the

Respondent's conduct under s 109(3)(a)(i), (iv), (b); and under s 109(3)(e), the Respondent's failure or refusal to participate in hearings.

(a) The Tribunal finds that the Respondent contravened s 78(1) of the VCAT Act;

(b) The Tribunal finds that the Respondent contravened Part 6 of the EO Act in that he sexually harassed the Applicant contrary to s 93(2)(a) of the EO Act; and

(c) The Tribunal determines the proceeding in favour of the Applicant under s 78(2)(b)(i) of the VCAT Act.

83 The Tribunal will make orders under s 125 of the EO Act that the Respondent, Matthieu Olivo, pay to the Applicant an amount to compensate the Applicant for loss, damage and injury suffered in consequence of the Respondent's sexual harassment, in the sum of $150,810.00, comprising:

(a) General damages for pain, suffering and emotional harm in the amount of $120,000.00;

(b) Special damages for loss of earnings in the amount of $18,810.00; and

(c) Aggravated damages, for the serious nature of the Respondent's conduct and failure to participate in these proceedings, in the amount of $12,000.00.

84 The Tribunal will further order, pursuant to ss 78(2)(c) and 109(2) of the VCAT Act, and being satisfied that it is fair to make such an order, that the Respondent pay the Applicant's costs of this proceeding, in accordance with the County Court Scale on a standard basis, excluding costs referable to the Applicant's claim initially made against Bloomingdale Fine Foods Pty Ltd trading as Bistrot D'Orsay, such costs to be assessed by the Costs Court in default of agreement.

[1] The time for the Respondent to file witness statements was extended to 25 May 2021 by Tribunal Order dated 30 April 2021.

[2] Reproduced in the Affidavit of Applicant's Solicitor dated 26 July 2021 [23].

[3] Refer Affidavit of Applicant's Solicitor dated 26 July 2021.

[5] In GLS v PLP (Human Rights) [2013] VCAT 22, Garde J set out a list of authorities which support this approach.

[6] Horman v Distribution Group Ltd [2001] FMCA 52 [64].

[7] Aldridge v Booth [1988] FCA 170; 80 ALR 1. That formulation has been applied in many cases since, for example Elliott v Nanda [2001] FCA 418; (2001) 111 FCR 240, Horman v Distribution Group Ltd [2001] FMCA 52 at [64], Poniatowska v Hickinbotham [2009] FCA 680.

[8] Johanson v Blackledge [2001] FMCA 6; (2001) 163 FLR 58, 75 [84]-[85]; Aleksovski v Australia Asia Aerospace Pty Ltd [2002] FMCA 81, [83].

[9] Dated 4 May 2021 (filed and served 4 May 2021), Exhibit C.

[10] Dated 28 February 2020 (filed and served 4 May 2021), Exhibit A.

[11] Dated 21 April 2021 (filed and served 4 May 2021), Exhibit B.

[12] Dated 26 April 2021 (filed and served 4 May 2021), Exhibit E.

[13] Dated 27 July 2021 (filed and served 27 July 2021), Exhibit D.

[15] 'Attached to this statement and marked "CB-01" is a screenshot of this text message.'

[16] 'Attached to this Statement and marked "CB-02" is a screenshot of this text message.'

[17] 'Attached to this statement and marked "CB-03" is a copy of screenshot of this series of messages, together with a translation of the French text.'

[18] 'Attached to this statement and marked "CB-04" is a copy of that report.'

[23] Witness Statement dated 28 February 2020.

[24] Witness Statement dated 26 April 2021.

[25] Witness Statement dated 21 April 2021.

[26] Applicant's First Statement [20].

[29] Refer also Outline of Argument for Applicant dated Applicant's [14]-[15].

[30] Refer in particular to s 3(a), (c) and (d)(i) of the EO Act.

[31] GLS v PLP (Human Rights) [2013] VCAT 221 [259] per Garde J.

[32] Refer Applicant's First Statement, Annexure CB-04 and [43]; Applicant's Second Statement, [10], [12]-[14].

[33] Refer Applicant's First Statement, [35] and Annexure CB-02.

[34] [2014] FCAFC 82 [96], [109], and [117] (the Oracle case).

[35] Collins v Smith (Human Rights) [2015] VCAT 1992 [148] adopting the analysis of Emma Starkey and Jenny Vardi in 'Moving with the Times', Law Institute Journal, August 2015 at p 51.

[38] (Anti-Discrimination) [2008] VCAT 584; (2008) EOC 93-491 (the Tan case).

[40] [2019] FCCA 1267.

[42] (Human Rights) [2019] VCAT 259.

[43] (Human Rights) [2015] VCAT 1992.

[44] [2021] QIRC 74.

[45] [2013] QCAT 565.

[46] Applicant's First Statement [42], [44]-[45]; Applicant's Second Statement [4].

[47] Applicant's Second Statement [2]-[8].

[48] Refer Applicant's Second Statement [9]; and Applicant's First Statement CB-04 at 6.4.

[49] Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1, 8; Myer Stores Ltd v Soo [1991] VicRp 97; [1991] 2 VR 597.

[50] See Hall v Sheiban [1989] FCA 72; (1988-89) 85 ALR 503 (Full Court); De Simone v Bevacqua (1994) 7 VAR 246, 269 (McDonald J); Spencer v Dowling [1996] VSC 51, p 144-145; Coyne v P & O Ports [2000] VCAT 657 (31 March 2000), p 34-35; Ewin v Vergara (No 3) [2013] FCA 1311, [676].

[51] Refer Applicant's Second Statement [12].