AB v XYZ Pty Ltd

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2018 02395

AB	Appellant
v
XYZ PTY LTD	Respondent

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JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 October 2019
DATE OF JUDGMENT:	3 December 2019
CASE MAY BE CITED AS:	AB v XYZ Pty Ltd
MEDIUM NEUTRAL CITATION:	[2019] VSC 788

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WORKERS’ COMPENSATION – Appeal and cross-appeal from orders of Magistrates’ Court in claim for compensation under Accident Compensation Act 1985 (Vic) – Appellant claimed to have suffered post-traumatic stress disorder and depression caused by sexual assaults and associated harassment and abuse – Magistrate not satisfied that alleged sexual assaults occurred – Magistrate nevertheless found that appellant was suffering from ‘significant stress’ and unable to work from April 2008 to March 2010 – Whether Magistrate decided claim on a basis not litigated – No evidence to support finding that appellant had suffered a mental injury due to work stressors not related to the alleged sexual assaults – Accident Compensation Act 1985 (Vic), s 82.

APPEAL – Whether Magistrate’s decision affected by apprehended bias – Whether comments of Magistrate during appellant’s evidence produced ineradicable apprehension of prejudgment – Need to avoid assessing credibility based on stereotypical assumptions about victims of sexual assault – Approach to assessing credibility where delay in reporting sexual assault – Magistrate’s comments in context did not give rise to reasonable apprehension of bias – Whether Magistrate failed to have regard to material considerations – Magistrate’s oral reasons did not mention expert evidence about delayed reporting of sexual assault – Lengthy delay in delivering judgment – No presumption that Magistrate considered relevant evidence not mentioned in reasons – Magistrate disregarded relevant evidence.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms E Levine
For the Respondent	Mr J Gorton QC with Mr M Hooper	Russell Kennedy

HER HONOUR:

AB worked for XYZ Pty Ltd from August 2007 to 19 March 2008.[1] She was engaged by CD, the managing director of XYZ, to manage the merger of XYZ and another firm. In August 2012, AB made a claim against XYZ under the Accident Compensation Act 1985 (Vic) (AC Act), for compensation in respect of psychiatric injuries caused by ‘sexual assault and associated harassment and abuse’. Her claimed injuries were post-traumatic stress disorder and depression.
[1]Pseudonym orders were made in this proceeding and in the Magistrates’ Court proceeding, to the effect that the appellant is to be referred to as ‘AB’, the respondent is to be referred to as ‘XYZ Pty Ltd’, and its managing director is to be referred to as ‘CD’.

The claim was rejected by XYZ’s claims agent, and did not resolve at conciliation. On 31 May 2013, AB filed a complaint in the Magistrates’ Court of Victoria, seeking declarations that she was entitled to weekly payments of compensation and medical and like expenses in accordance with the AC Act, from 19 March 2008 and ongoing. The complaint alleged that AB ‘sustained the injuries during the period from 28 December 2007 to about 19 March 2008, in circumstances where she was sexually assaulted and subjected to abuse, bullying and harassment in the workplace’ by CD. These allegations were denied by XYZ.

AB’s claim was heard by Magistrate O’Brien over 12 days in 2016. Both parties were represented by senior and junior counsel. There was no dispute that AB had, since March 2008, suffered from a psychiatric injury that incapacitated her for work. However, XYZ denied that CD had sexually assaulted AB, and denied that her psychiatric injury was work related.

The evidence of AB and CD was heard in late June and early July 2016. AB was cross-examined over six days, mostly on issues going to her credibility. Various medical and other expert witnesses gave evidence in early November. The Magistrate heard final submissions on 17 November 2016 and reserved his decision.

On 17 July 2018, the Magistrate gave oral reasons for decision. His Honour was not satisfied that the alleged sexual assaults ever occurred. However, he found that, by March 2008, AB was suffering from significant stress, which manifested in various symptoms and poor work performance, and meant that she could not perform her normal work until March 2010. Thereafter, the Magistrate could make no finding as to why AB was unable to work.

Final orders were made on 17 October 2018, requiring XYZ to pay AB compensation in accordance with the AC Act, for the period 19 April 2008[2] to 1 March 2010 but not thereafter. XYZ was also ordered to pay AB’s costs.
[2]On a number of occasions in the Magistrate’s decision and orders, his Honour mistakenly referred to the date on which AB ceased working for XYZ as 19 April 2008. As discussed at [90](c) below, the correct date was 19 March 2008.

Both parties have appealed against these orders, under s 109 of the Magistrates’ Court Act 1989 (Vic).

XYZ sought leave to cross-appeal, to the extent it is required, under s 109(4) of the Magistrates’ Court Act. Although the notice of cross-appeal was not filed within 30 days after the final orders were made, it was filed within 30 days after the notice of appeal was filed.[3] AB did not object to leave being granted, and I am satisfied that it should be in the circumstances of this case.[4]
[3]Magistrates’ Court Act 1989 (Vic), s 109(2)(a) provides that an appeal under s 109(1) must be instituted not later than 30 days after the day on which the order complained of was made. The Court may grant leave to appeal out of time, under s 109(4), in the circumstances set out in s 109(5). Section 109 does not provide in terms for cross-appeals.
[4]Having regard to the matters set out in the affidavit of Darren Seidl dated 10 December 2018.

The appeals raise the following issues for determination:

(a) Was the Magistrate’s decision affected by apprehended bias?

(b) Did the Magistrate fail to have regard to material considerations?

(c) Did AB present a case that she had suffered injury due to stress at work?

(d) Was there any evidence to support the Magistrate’s finding that AB had suffered a mental injury due to stress at work, not related to the alleged sexual assaults?

(e) If so, was there any evidence to support the Magistrate’s finding that AB was only incapacitated for work until 1 March 2010, and not thereafter?

For the reasons that follow, I have concluded that:

(a) The Magistrate’s decision was not affected by apprehended bias.

(b) The Magistrate failed to have regard to material considerations, being the evidence of Dr Sandra Hacker about delayed reporting of sexual assaults and AB’s email to CD of 15 April 2008.

(c) AB did not present a case that she had suffered injury due to general stress at work. Her claim was for compensation for serious psychiatric injuries caused by traumatic incidents involving sexual and physical assaults by CD. It was unfair of the Magistrate to decide the case on a basis that was not litigated.

(d) While there was evidence that AB’s working environment was stressful, stress is not an injury. Whether it is a cause of mental injury is a matter for medical evidence. There was no evidence that AB’s psychiatric injuries were due to work stressors other than assaults by CD.

(e) It is not necessary to determine whether there was evidence to support the Magistrate’s finding that AB had capacity for work from 1 March 2010.

Both the appeal and the cross-appeal will be allowed. Regrettably, this means that the proceeding must be remitted to the Magistrates’ Court for rehearing.

The Magistrate’s reasons for decision

As mentioned, the Magistrate delivered oral reasons for decision on 17 July 2018. The Magistrates’ Court provided the revised transcript of his Honour’s reasons to the parties on 24 September 2018.

The Magistrate began by referring to the claim as articulated in AB’s statement of claim and original claim form. He emphasised the words ‘and associated harassment and abuse’ in the claim form. He noted that the claim was rejected on the basis of the opinion of a psychiatrist that AB was suffering from an adjustment disorder with depressed mood, ‘however this illness had developed in the context of feeling badly treated or exploited by your employer’.

His Honour then referred to the ‘terrible administrative history’ of the claim, and highlighted the four and a half year gap between the end of the employment and the claim being made. He also referred to the unfortunate procedural history of the Magistrates’ Court proceeding, once it was commenced, concluding:

Finally, after over 800 pages of transcript, nearly 1,000 pages of emails – some relevant, but mostly bizarre – lengthy expert evidence followings reports from IT experts and doctors, it falls to me to provide my judgment. I must say, it has taken me much more time than I thought due to various adjournments, interruptions and other commitments and the need to thoroughly review the transcript, my own notes and all the other documentation and counsel submissions.

The reasons then recounted in some detail the evidence given by AB, starting with her personal and work history, her contractual arrangements with XYZ and the nature of the ‘complex and difficult’ job she had been engaged to do over a short timeframe. His Honour said that it seemed to him that there were two issues which led to AB’s complaints:

The first was the conduct of [CD], particularly in relation to allegations of sexual misconduct. The second was the general working conditions over that period and the pressures placed by AB on XYZ, particularly by Mr CD, and the lack of support given to the Plaintiff by XYZ Pty Ltd generally. Hence my emphasis earlier on the works ‘and associated harassment and abuse’ in the claim form.

Before dealing with the alleged sexual assaults of her by CD, the Magistrate summarised AB’s evidence about other conduct of CD and more broadly XYZ. AB said that she worked very long hours and over the Christmas and New Year period, and had problems with CD’s management style. She identified these problems in a lengthy email to CD dated 29 November 2007, which the Magistrate quoted in full. The Magistrate observed that it appeared from this evidence that, by Christmas 2007, AB was ‘already under stress due to her onerous role, multiple duties and lack of support’.

The Magistrate then turned to AB’s core allegations. He outlined her evidence of the first occasion on which, she alleged, CD sexually assaulted her, when they were the only ones working in the office on 28 December 2007. There followed summaries of AB’s evidence of the subsequent sexual assaults. Most of the nine alleged sexual assaults occurred on an unoccupied floor in the same building as the XYZ office, which was being fitted out for use after the merger. In addition, AB described an occasion on 31 January 2008, when CD forced himself on her in her home after dropping her home from the airport, and another on 3 March 2008, when he sexually assaulted her in her hotel room during a conference in the Yarra Valley.

The reasons then set out AB’s evidence about two more incidents towards the end of her employment at XYZ, which did not involve sexual assault. The first occurred on 12 March 2008:

… AB was working late, about 9.30pm or 10.00pm when CD returned to the office and started telling her she was “useless” and flicking her on the side of the head with his thumb and forefinger. She thought he looked as though he was going to kill her.

The final incident occurred later that week:

AB then gave evidence about an incident which occurred on or about Friday 14 March 2008 when she wanted to go to a funeral of an uncle in the afternoon. CD rang her and said he had an urgent meeting to go to at one of the Bayside suburbs and that she would have to deal with payroll issues in the office and could not go to the funeral. She said she later found out that the “meeting” CD described was simply a golf game at one of the more prominent suburban Bayside golf courses. When he returned to the office, she confronted him with this lie and general bad behaviour. She said he went into a black rage and slammed her head against a wall.

The Magistrate then set out AB’s evidence about the termination of her employment, on 19 March 2008. He referred to AB’s evidence of four further occasions on which CD sexually assaulted her in her home. The first of these occasions was in March 2008, when CD came to AB’s home to discuss her possible reinstatement. The last was in May 2009, after a meeting to discuss AB doing some contract work. The Magistrate commented that, on these occasions, AB saw fit to permit CD into her home.

After referring to the resolution of the dispute over the termination of AB’s employment, the Magistrate noted that AB first complained of the alleged sexual assaults to SECASA[5] and made a statement to police in May 2011, and first saw a doctor in 2012. He also referred to AB’s evidence about her mental state.
[5]South Eastern Centre Against Sexual Assault.

As the Magistrate observed, ‘AB was then cross-examined by Ms Judd[6] for the better part of a week’. The cross-examination challenged her credibility in relation to the alleged sexual assaults due to her lack of complaint. Most of the cross-examination ‘was taken up with questions about the origins and content of, as I said, the hundreds of bizarre emails, which AB’s answers could only be described as equally bizarre and ridiculous’.
[6]Senior counsel for XYZ.

At this point, his Honour referred to an exchange with senior counsel for AB, in which he ‘took me to task about my views of AB’s credibility’. I will return to this part of the reasons below, in relation to the claim of apprehended bias.

The Magistrate noted three matters of interest that had emerged from this cross-examination about AB’s ‘bizarre and boring’ emails to CD, sent after the termination of her employment. The first was that AB had told CD she had been charged with an offence and fined for trying to use a cancelled XYZ cab charge voucher. The story was not true. The second matter involved an email from AB to CD, forwarding a letter from the television program Today Tonight to AB concerning ‘a suggested story you submitted to Today Tonight via our website’. The letter was a fake. The third matter was a suggestion that AB had made that she was to be evicted from her home. The suggestion was ‘all nonsense’.

CD was called to give evidence on Wednesday of the second week of the trial. The Magistrate noted that CD categorically denied each and every one of AB’s specific allegations. He denied any rape or sexual assault or taunting. He said that AB had never made any allegation of sexual assault to him or anyone else, and said his first knowledge of the allegations was on reading AB’s complaint to the Australian Human Rights Commission.[7] Asked where he was between Christmas Day in 2007 and New Year’s Day 2008, CD answered that it was a family tradition every year to spend that period at a beach house in Dromana with his elderly father.
[7]AB’s complaint to the Australian Human Rights Commission was lodged on about 18 November 2010 and was terminated on 1 May 2012. CD first became aware of the complaint in 2011. See trial transcript 439:25-440:20.

His Honour regarded most of CD’s evidence about events after AB’s dismissal to be ‘totally unnecessary’. It was relevant that CD confirmed AB’s evidence that, in March 2010, CD gave her some work dealing with research and personal tax issues. CD said she performed this work to a high standard.

Of the cross-examination of CD, the Magistrate recorded that Mr Gyorffy[8] had put to CD that his mobile phone records showed that he used his phone in Collins Street at 12:16pm and 2:26pm on 28 December 2007. CD’s response was that he could not recall being there that day, referring to his Christmas routine. The Magistrate noted that CD had been cross-examined at length about AB’s other allegations and denied them:

An attempt was made to impugn CD’s credit concerning a business card of his which clearly displayed a Harvard qualification which he did not have, being an MBA from Harvard. As far as I’m concerned, the evidence of CD generally did not shed a good light upon him and I was not impressed by him as a witness or a person, but I find that none of the matters put to him in cross-examination destroy his credit. At best, these matters did not paint a good picture of him. As I said, he did not impress me.

[8]Senior counsel for AB.

The reasons then turn to the expert evidence, which was heard in November 2016. The Magistrate recorded that he had heard from IT experts for each side, Mr Haines and Mr McLeish, and had also heard viva voce evidence from psychiatrists, Dr Rowan McIntosh, Dr Sandra Hacker and Associate Professor Doherty. Numerous other psychiatric and other reports were tendered, including two reports by the late Dr Paul Kornan. The Magistrate referred in some detail to the content of reports from Ms Jess Marina, a counsellor at SECASA; Ms Kim Dowse, a psychologist; Associate Professor Grant Blashki, AB’s general practitioner; and Dr Rowan McIntosh, AB’s treating psychiatrist. While the Magistrate identified the authors of the other medical reports tendered, including Dr Sandra Hacker, he did not discuss the contents of their reports.

After noting that the histories provided to each of the doctors by AB was limited to the alleged sexual assaults by CD, the Magistrate summarised the medical evidence thus:

There was generally agreement between these four doctors that AB was suffering a psychiatric illness which could be described as an adjustment disorder with mixed anxiety and depression associated with panic attacks. In a couple of cases, the doctors also added features of traumatisation. It was also agreed that she could not return to work and appeared dispirited as to her prognosis.

The Magistrate then made the critical finding:

Upon reviewing the transcript, my notes, the emails exhibited and taking into account the medical evidence, the IT evidence, the specialists’ reports and counsels’ detailed submissions, I am not satisfied on the balance of probabilities that the unwanted sexual assaults of which AB complained in her evidence ever occurred. I am not satisfied as to these matters for the following reasons.
Firstly, they are specifically denied by Mr CD. And, while I was not impressed by him as a witness, I find that, apart from the evidence of Ms AB, the only evidence – corroborating evidence – was the fact that his telephone records of 28 December 2007 place him at the Collins Street location in the middle of the day and at Frankston later on that day, suggesting that he had broken his Dromana holiday to return to work at about the time when the first assault was alleged to have occurred. I accept the submission of Mr Gyorffy that Mr CD’s answers when this matter was put to him were less than satisfactory, but the only inference I can draw from all of this is that he was at his workplace on that day at that time. It can be put no higher than that, unless I believe Ms AB’s evidence as to the alleged assault. And I do not.
Secondly, I do not believe AB’s evidence as to these matters for many reasons, including but not limited to the following. Notwithstanding her evidence that CD had unwanted sexual intercourse with her at the Collins Street office on 28 December 2007 during the day and similarly on a number of other occasions when staff were present on the floor below, and on each occasion CD departed after the event, and on 28 December 2007 she was left in a state of shock and she stated also, later, that she was fearful, she made no complaint with anybody until over three years later. Her evidence was that she made no complaint about these events to any of the other directors or partners or any senior staff other than about general management issues, which were raised in the email of 29 November … and another lengthy email of 16 March 2008, which went for many pages. She said nothing to any of her workmates or close friends or family and even, to the date of the hearing, her family knew nothing of these matters or this court case. She sought no medical treatment or advice until over three years later when possible infection due to no protection being used by CD and most importantly she made no report to the police or any other authority until she consulted Secasa in 2011. In cross-examination she explained the lack of complaint on the basis that she did not want her employment terminated but this explanation in my view carries no weight when it is considered that about five more assaults occurred after the termination of her contract on 19 April 2008 and still no complaint was made until 2011.

Furthermore, notwithstanding what had happened previously, she admitted that CD had come to her home and she had allowed him in on one occasion when she got out of bed wearing only a night dress and a dressing gown and had to activate the electric security door to let him in. She could have easily spoken to him through the screen door without admitting him.
Earlier, notwithstanding the earlier assaults, she attended a conference in the Yarra Valley and actually invited CD to her room in the full knowledge that she was placing herself in an extremely vulnerable situation and the same thing happened again. I noted particularly, when asked, she could remember precisely what CD was wearing on most of the 13 occasions of assaults, which I found hard to believe, particularly when in other evidence she could not remember important details of the extension of her contract of employment.
For these reasons, I am not satisfied on the balance of probability that the alleged sexual assaults occurred.

His Honour then observed that almost the whole of the medical evidence was based on the allegations of sexual assault, and assumed them to be true. Given his findings, the factual basis for those opinions was not established and he found it unnecessary to comment further on them. For similar reasons, he also found it unnecessary to deal with the evidence of the two IT experts or the bulk of the emails tendered.

The Magistrate noted that, thus far, he had only considered ‘that part of AB’s evidence in relation to CD and the sexual assaults’. There were other matters to be considered:

Putting to one side the allegations against CD, which I have indicated I do not accept, AB also gave evidence that by early 2008 she was worn out and not coping with the long hours, the management style of CD and other XYZ directors and their lack of support for her, the onerous duties in her multiple roles. In particular, she was stressed by having to work long hours over the Christmas/New Year period and not be allowed time off to go to a funeral by Mr CD because he had an important meeting, only for her to learn later that that so-called meeting was a game of golf. The build up to her stressful condition is well set out in her email of 29 November 2007 to which I have referred and here I might add that, while the statement of claim refers to a period of time commencing about 28 December 2007 to about March 2008, I have taken into account that email of 29 November, as I said earlier, as setting the context of the situation in this case and that is further confirmed by the second email and the following series of emails which run for a number of pages, commencing 16 March 2008 – setting out similar issues of stress and lack of support.
In addition, there was the appointment of the new financial controller whom AB perceived as a replacement for her at the time of her summary dismissal and there is also the manner of her summary dismissal, to which I have already referred. I am prepared to accept her evidence in relation to these matters, particularly having regard to those two emails to which I have referred, 29 November 2007 and 16 March 2008. In this regard I’m prepared to accept for these reasons based upon that part of AB’s evidence that, at the time of the summary termination of her contract of employment on 19 April 2008, she was suffering from significant stress manifesting in burnout, overwork, lack of sleep, poor concentration, resulting in poor work performance, which meant that she could not perform her normal work properly.
Therefore, I find that she had, from that time, being 19 April 2008 to March 2010 when she resumed the contract work for CD from home along the lines of her previous work, which he described in his evidence as being performed to a high standard, which she apparently performed until September 2010, a period of some six months … that AB had only a limited capacity for work and could not perform her previous work. I find that his situation existed because of the stress as described above, being a mental injury within the meaning of the Accident Compensation Act, entitling her to compensation pursuant to section 93 for, using words of the section, for “current work capacity” from 19 April 2008 to – and I’ve nominated 1 March 2010 because no other date in March was given – but not thereafter and medical and like expenses for the same period and not thereafter.

His Honour provided further reasons for determining the claim on this basis, which I will return to below in relation to the cross-appeal.

The Magistrate summarised his findings as follows:

1.I am not satisfied on the balance of probabilities that AB’s allegations concerning unwanted sexual assault against CD have been made out.
2.This finding disposes of most of AB’s claim against XYZ.
3.However, there remains other aspects of her evidence and I am satisfied that she was under considerable stress, if not by November/December 2007, then certainly by March/April 2008, such that she could not cope with the pressures of her job for reasons I have discussed and (because of her poor work performance) her contract of employment was terminated abruptly on 19 April 2008.
4.I find that she resumed and performed similar work privately for CD between March and September 2010.
5.I find that in the period 19 April to 1 March 2010, AB could not perform her former employment and, apart from a couple of small consulting assignments, had no capacity for her former job, but may have been able to do some other work, but did not perform any work in that period.
6.Therefore, I find that between 19 April 2008 to 1 March 2010 AB had an incapacity for employment as a direct result of a mental injury arising out of or in the course of her employment with XYZ and is entitled to weekly payments of compensation and payment of medical and like expenses for that period, but not thereafter.
7.On the evidence before me, I cannot make any finding as to why, between the cessation of her casual employment in September 2010 and her first complaints to Secasa, doctors and police in 2011, her psychiatric condition had deteriorated such that she was diagnosed as having an adjustment disorder with anxiety, depression, panic attacks and some features of traumatisation, rendering her unfit for any employment.

His Honour then invited counsel to address him on the form of the orders to be made, and on the question of costs. The final orders, which were not made until 17 October 2018, were:

1.The defendant to pay the plaintiff weekly payments of compensation as for a ‘current work capacity’ for the period 19 April 2008 to 1 March 2010 but not thereafter, in accordance with the provisions of s 93 of the Accident Compensation Act 1985.
2.The defendant pay the plaintiff’s reasonable medical and like expenses in the period 19 April 2008 to 1 March 2010 but not thereafter, in accordance with the Accident Compensation Act 1985.
3.Liberty to apply pursuant to s 114E of the Accident Compensation Act 1985, in relation to interest on arrears of compensation.
4.The defendant pay the plaintiff’s costs, including any reserved costs on Magistrates Court Scale ‘G’, to be assessed in default of agreement by the Costs Court.

AB appeals from orders 1 and 2 of these orders. XYZ cross-appeals against the whole of the orders.

Was the Magistrate’s decision affected by apprehended bias?

AB’s first ground of appeal was that the conduct of the Magistrate gave rise to the reasonable apprehension that his Honour might not bring an unprejudiced mind to the determination of the matter.[9] Her particular complaints about the Magistrate’s conduct were that he had relied on discredited rape myths and stereotypes about female victims’ behaviour and victim-blaming during the hearing and in the judgment, and had expressed stereotypical or biased thinking in relation to sexual assault victims.
[9]The notice of appeal also complained of actual bias, but this complaint was not pressed at the hearing of the appeal.

As a result, she argued, discredited sexual stereotypes and stereotypical myths had found their way into the Magistrate’s judgment, he had prejudged her evidence on the basis of those stereotypes and had erred in judging her credibility based on the correspondence between her behaviour and the expected behaviour of a stereotypical victim of sexual assault. She identified five stereotypical assumptions about victims of sexual assault that she said were reflected in the conduct of the Magistrate during the hearing and in his reasons for decision. These included myths that women are responsible for preventing sexual assault (victim blaming) and that a real victim will report at the first opportunity. She also complained of an ‘inordinate delay’ in delivering judgment.

Apprehended bias – legal principles

Where there is a question as to the impartiality of a judicial officer, the established test for disqualification is ‘if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide’.[10] This is a robust test, which attributes to the fair-minded lay observer knowledge of the circumstances leading to the decision and the context in which it was made.[11] It does not preclude a judge from expressing, during the hearing, tentative views on the issues to be decided.[12] What must be avoided is conduct that creates ‘an ineradicable apprehension of prejudgment’.[13]
[10]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [6].
[11]Isbester v Knox City Council (2015) 255 CLR 135, [23] (Kiefel, Bell, Keane and Nettle JJ).
[12]Vakauta v Kelly (1989) 167 CLR 568, 571 (Brennan, Deane and Gaudron JJ); Johnson v Johnson (2000) 201 CLR 488, [13] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
[13]Johnson v Johnson, [14] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).

A party who believes that comments or questioning by a judicial officer in the course of a trial give rise to an appearance of prejudgment should not let them pass without objection. Standing by and waiting until the outcome is known will usually amount to a waiver of the right to object:[14]

The reason why that is so is obvious. In such a case, if clear objection had been taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing. It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her.

This does not necessarily require a formal application for the judge to withdraw from the case. It may be sufficient to object to what has been said, so that the judge can determine whether to take steps to dispel the apprehension of prejudgment, or withdraw.[15]

[14]Vakauta v Kelly, 572 (Brennan, Deane and Gaudron JJ).

[15]Vakauta v Kelly, 587 (Toohey J).

Where a judge’s conduct during a hearing has given rise to an apprehension of prejudgment, and appropriate objection has been taken, the reasons for decision may be relevant – for example, to show that the apprehension of prejudgment was not dispelled. It is important, however, not to succumb to:[16]

… the fallacious argument that because one side lost the litigation the judge was biased, or the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side’s arguments or otherwise, demonstrates prejudgment.

In other words, one should not reason backwards from the way an issue was decided to a conclusion that it might reasonably be apprehended that the judge prejudged the issue.

[16]Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427, [67] (Gummow A-CJ, Hayne, Crennan and Bell JJ).

It is common in a case involving allegations of sexual assault that the alleged perpetrator denies the allegations, and that there are no other direct witnesses. In such a case, resolution of the disputed issues of fact depends heavily on an assessment of the complainant’s credibility. It is axiomatic that this assessment must be made on the evidence in the particular case, and not by the application of stereotypical assumptions about victims of sexual assault.

Victorian criminal law now identifies and negates a number of assumptions of this kind. For example, s 164 of the Evidence Act 2008 (Vic) abolishes any requirement that evidence of a sexual offence be corroborated.[17] More specifically, the Jury Directions Act 2015 (Vic) prohibits any suggestion to a jury that complainants in sexual offence cases are an unreliable class of witness, or that complainants who delay in making a complaint require more careful scrutiny than other complainants.[18] Before evidence of delay in making a complaint is led, the judge must direct the jury that experience shows that:[19]

(a) people may react differently to sexual offences and there is no typical, proper or normal response to a sexual offence; and
(b) some people may complain immediately to the first person they see, while others may not complain for some time and others may never make a complaint; and
(c) delay in making a complaint in respect of a sexual offence is a common occurrence.

[17]See also Robinson v R (1999) 197 CLR 162, [19].

[18]Jury Directions Act 2015 (Vic), s 51.

[19]Jury Directions Act 2015 (Vic), s 52, see also s 53.

In an appropriate case, the judge may also direct the jury that there may be good reasons for a person to delay complaining about a sexual offence.[20] If such a direction is given, it will usually be proper for the judge to inform the jury of some of the possible reasons for a complainant to delay in making a complaint.[21] The Victorian Criminal Charge Book lists a number of possible reasons for delay, which include being emotionally dependent on the offender, feeling responsible or to blame for the acts, feeling shame and embarrassment, and fearing disbelief on the part of family or officials.[22]
[20]Jury Directions Act 2015 (Vic), s 53.
[21]Judicial College of Victoria, Victorian Criminal Charge Book, 4.8 – Delayed complaint, 4.8.1 – Effect of delayed complaint on credit, [44].
[22]Ibid, [45], citing R v ERJ (2010) 200 A Crim R 270; Svajcer v R (2010) 200 A Crim R 587; Jones v R (1997) 191 CLR 439; M v R (1994) 181 CLR 487.

That is not to say that delay in making a complaint can never be relevant to the credibility of a complainant. Of course it can. But, in order to avoid taking a mental shortcut, the delay in question must be assessed against the experience that delay in making a complaint about a sexual offence is common, and that there may be good reasons for it. It must also be assessed in light of any reasons given by the complainant for the delay.

The need to avoid making judgments based on myths and stereotypes is equally important in a civil case. It is fundamental to the judicial function to decide each case on its merits, based on the evidence in that case. As judges of the Supreme Court of Canada have observed:[23]

Complainants should be able to rely on a system free from myths and stereotypes, and on a judiciary whose impartiality is not compromised by these biased assumptions.

It follows that a judge who, during a hearing, displays rigid adherence to stereotypical assumptions about victims of sexual assault – for example, by expressing disbelief in the evidence of a complainant who did not report promptly – may ‘produce an ineradicable apprehension of prejudgment’ in the mind of the reasonable lay observer.

[23]R v Ewanchuk [1999] 1 SCR 330, [95] (L’Heureux-Dubé and Gonthier JJ, McLachlin J agreeing at [103]). See also R v ARJD [2018] 1 SCR 218, upholding R v ARD [2017] ABCA 237.

Whether the Magistrate’s conduct during the hearing gave rise to an apprehension of bias, in the form of prejudgment, requires an assessment of whether it gave the appearance of a state of mind ‘so committed to a conclusion already formed as to be incapable of alteration’.[24] AB says that it did, while XYZ submits that the Magistrate’s remarks were no more than a permissible expression of his Honour’s preliminary views.
[24]Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, [72] (Gleeson CJ and Gummow J, Hayne J agreeing at [176], see also [186]).

Did the Magistrate’s conduct give rise to an apprehension of prejudgment?

AB’s complaint of apprehended bias was based on several comments made by the Magistrate, early in AB’s evidence, expressing doubt about her credibility. AB gave evidence in chief for just over a day, during which his Honour made the following comments:

(a) AB gave evidence of several occasions after the termination of her employment when CD sexually assaulted her in her home. One of these was on 10 March 2009, when AB said that CD came to her house to deliver documents, insisted on coming inside, and then sexually assaulted her just inside the front door.[25] Asked how she felt after he had left, AB answered:[26]
[25]Trial transcript 126:7-128:12.
[26]Trial transcript 128:13-18.

I just remember, you know, sitting there and I was just crying. It’s just, I felt - I was angry with myself for almost getting sort of sucked in, why did I let him back in again, I should have known because there’d been such a gap now. I was probably more just angry at me.

The Magistrate then asked:[27]
[27]Trial transcript 128:19-20.

Didn’t that occur to you before you let him in?

(b) The final assault was alleged by AB to have occurred in May 2009, after a meeting with CD at a café in Port Melbourne. She gave evidence that he insisted on driving her home and walking her to her front door, and then followed her inside. Before AB was asked what happened next, the Magistrate said:[28]

Madam, hadn’t the penny dropped by now that all of these contacts that he was seeking to have with you were all going to end up in the one thing?

[28]Trial transcript 132:30-133:1.

Senior counsel for XYZ began what was to be a lengthy cross-examination of AB before lunch on the second day of the trial. That afternoon, the Magistrate said several things that suggested he did not accept the truthfulness of AB’s evidence:

(a) During the afternoon session, there was a short adjournment to sort out some issues with documents that were being used in cross-examination. As he adjourned the court, the Magistrate said: ‘… and you might like to think about a few of the things I’ve said today, Mr Gyorffy, in the meantime’.[29]
[29]Trial transcript 175:20-22.

(b) The difficulties with the documents continued after the break. The Magistrate adjourned for the day at 3:45pm and asked counsel to ‘sort this out overnight’. Before adjourning, he said:[30]
[30]Trial transcript 179:9-11.

Again, Mr Gyorffy, I urge you to consider what comments have fallen from my lips today.

(c) Cross-examination resumed the next morning, the third day of the trial. Senior counsel for XYZ was testing AB’s evidence that she had not reported the sexual assaults because she was afraid she would lose her job if she spoke up. The Magistrate intervened:[31]
[31]Trial transcript 190:21-31.

HIS HONOUR: What you’re being asked is this: if your job’s terminated, and the rapes continue, why didn’t you speak up then? You couldn’t be afraid of losing your job because you didn’t have one?---Because at that point the manner in which he’d terminated me had sort of created this sort of rumour and innuendo that I had engaged in some sort of serious - - -

Are you serious about that?--- - - - misconduct, and I felt that, you know, trying to repair my reputation, effectively having to sort of keep in with him.
Yes, all right.

(d) Questioning moved to the alleged assault on 3 March 2008, at a conference in the Yarra Valley. AB was asked about an earlier statement that she was not ‘overly deterred’ when CD asked to go to her room to work:[32]
[32]Trial transcript 194:17-195:2.

MS JUDD: You are seriously suggesting to this court that, notwithstanding you had been sexually assaulted, penetrated against your will, penetrated when you’d said no at work and at home, that you were not overly deterred about CD going to your room?---Well, no, just because it’s a room, there’d be no difference to us going if there was a smaller meeting room somewhere in the facility and we’re in there alone, there’s no difference.
It’s a room that the two of you would be alone in behind a locked door?---And that would be the same as if they’d had small meeting rooms in the facility and we would have been in there alone, because everyone’s booked into the lectures, there’s no-one wandering around so there’s no difference.
HIS HONOUR: Yes, there is, there’s a bed in it. Yes, go on.

(e) In the course of questioning AB about an alleged assault in early April 2008, the following exchange took place:[33]
[33]Trial transcript 224:5-31.

MS JUDD: Yes, and you say, “CD, I don’t want you to come in, you raped me two days earlier.” Or you, “CD, I need five, ten minutes and I’ll come downstairs fully clothed and talk to you in a public space”?---Well, that’s all very logical, but the reality is, it just doesn’t work like that at the time. Because, you know, I’m in - by this stage, you know, such a compromised state, you’re not necessarily doing things that might appear logical to other people.
By this stage your work at XYZ had finished?---Yes, that’s correct.
You were not in danger of losing your job?---No, I’d already lost it.
HIS HONOUR: Why didn’t you just tell him to go away?---I think because by that stage he had me so convinced that only he could now sort of repair this damage, because of all the rumours, and particularly he was spreading that, you know, he could repair that damage and he had me so convinced of that.
But was it necessary to admit him to your home for the damage to be repaired? Couldn’t it have been done in other ways?---I think because, you know, he was saying that he needed to speak to me about getting me reinstated - - -
Well, he can speak over the telephone, can’t he?---We did speak over the telephone.
Yes, all right.

(f) Senior counsel for XYZ then turned to cross-examining AB about various matters that were relevant only to her credibility. One was a claim made by AB to CD in 2009, that she had received a criminal conviction as a result of using a cab charge voucher that XYZ had cancelled. She acknowledged that she had not been fined, but had told CD that she had and was ‘just winding him up over it’.[34] AB was taken to some emails in which she maintained this fiction.[35] The cross-examiner then turned to a false suggestion that AB had made to CD, that she was going to give a story about him to Today Tonight, and sought to put an email to AB. After senior counsel for AB objected to the tender of the email, the Magistrate said:[36]

Mr Gyorffy, I understand your problem with these documents. I must say, I think it’s rather trivial. But, in my view, there’s more than sufficient information already before the court to make the point that Ms Judd’s trying to make.
MR GYORFFY: In what sense are you saying that, Your Honour? In relation to these documents or in general?
HIS HONOUR: First of all, in relation to the earlier documents which were signed off and for which you took no objection. But if you’re asking me about the general situation, I think I’ve probably given you an indication already yesterday, and I’ll give you the same indication today, I’m troubled by this evidence of your client.

[34]Trial transcript 228:13-230:25.

[35]Trial transcript 235:17-240:28.

[36]Trial transcript 246:22-247:4.

At this point, senior counsel for AB expressed concern about the indications given by the Magistrate:[37]
[37]Trial transcript 247:5-248:8.

MR GYORFFY: Well, Your Honour, that causes me trouble, because I made it absolutely plain at the outset of the case that it’s not just this evidence that matters.
HIS HONOUR: Sorry, which evidence?
MR GYORFFY: Of this witness. It has to be looked at in the context of the whole of the evidence, and throughout yesterday and today Your Honour has made a number of comments about the fact that the matters weren’t reported and has treated them as being something that draws to the credibility of this witness. Your Honour has now told me that you have doubts about the credibility of this witness, and the point that I was trying to make is that there will be psychological evidence that could explain all of this and that’s when the decision has to be made, Your Honour.
HIS HONOUR: Very well, I understand that.
MR GYORFFY: But there’s a concern now, Your Honour, you’ve gone a fair way - and I’ll have to get instructions and I’ll consider the matter overnight, but I’m concerned about the interjections that have gone on this morning time and time again, whenever there’s been a suggestion that the matter hasn’t been reported, as if that’s almost conclusive of what the evidence is.
HIS HONOUR: I hear what you say about hearing all of the evidence, but I’m simply, as I think I’m obliged to do, or permitted to do certainly, giving an indication of what I’m thinking at this stage of the case to assist you.
MR GYORFFY: If it’s at this stage of the case. It’s not assisting because, as I said to Your Honour, there’s going to be more, and there’s also going to be CD’s evidence and there may be different things coming out in that.
HIS HONOUR: Very well, I’ve already anticipated that you’d say that and we’ll simply go on.

The hearing did not go on much longer that day, because the Magistrates’ Court’s computer system had crashed. Before the hearing was adjourned, the Magistrate referred to the High Court’s decision in Johnson v Johnson,[38] to the effect that judges may form tentative opinions on matters in issue during a trial, and counsel are usually assisted by hearing those opinions and being given an opportunity to deal with them. The following exchange ensued:[39]
[38](2000) 201 CLR 488, [13] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
[39]Trial transcript 252:23-253:3, 253:28-254:5, 254:24-255:5.

MR GYORFFY: Yes, I appreciate that, Your Honour.
HIS HONOUR: Maybe I was a little bit over-the-top, but that’s a matter for you to - as the High Court says, and be given an opportunity to deal with it.
MR GYORFFY: Look, Your Honour, it’s not in my client’s interest that this matter go off, she’s waited a long time.
HIS HONOUR: I understand that.
MR GYORFFY: But it is in my client’s interests to be assured that things are going to go okay in terms of the hearing.
HIS HONOUR: Yes.
…
MR GYORFFY: Your Honour, my learned friend, Ms Judd, and I have been in those lofty jurisdictions where we’re put under the blowtorch with those sorts of comments, and I’m not being tender. I understand that, I understand there’s a socratic approach and that judges and Magistrates hearing matters have to let their thinking flow so that everybody knows where it’s going. It’s just, some of the statements were very strong, that’s all I’m saying.
…
HIS HONOUR: No, no, no, but I didn’t want you to think that I was taking the issue lightly, Mr Gyorffy.
MR GYORFFY: We’re both on the same page then.
HIS HONOUR: But I think it’s important that I do hear from Mr CD because I’ve got no idea what he’s going to say.
MR GYORFFY: Not only that, Your Honour, but the psychiatric evidence, and at an appropriate time I’ll be making an application in relation to that.
HIS HONOUR: I took on board what you told me in the opening about Dr Hacker, wasn’t it?
MR GYORFFY: Yeah.
HIS HONOUR: And her evidence would be - - -
MR GYORFFY: Pretty vital.

The Magistrate revisited the matter the following morning, and again referred to Johnson v Johnson and some other authorities. Senior counsel for AB drew his Honour’s attention to what was said in Johnson v Johnson about the circumstances in which the effect of a statement that might indicate prejudgment can be removed by a later statement which withdraws or qualifies it.[40] He then indicated that his client wished to continue with the hearing. The hearing proceeded for a further nine days.
[40]Johnson v Johnson, [14] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).

On appeal, AB did not complain that the Magistrate gave any further indication during the hearing that he was using stereotypical assumptions to assess her credibility. However, she did rely on the fact that his reasons for disbelieving her evidence included the fact that she did not complain to anyone for more than three years, and that she had allowed CD into her home and her hotel room ‘notwithstanding what had happened previously’. AB argued that this reasoning was based on stereotypical assumptions rather than an evaluation of the actual evidence in the case.

I have reviewed the transcript of the trial carefully, and have considered the Magistrate’s comments and questions in their full context. Having done that, I am not persuaded that, on the third day of the trial, a fair-minded lay observer would have thought that the Magistrate had closed his mind on the question of AB’s credibility.

It is true that some of the Magistrate’s questions suggested that he was using stereotypical assumptions to assess AB’s credit. He expressed particular scepticism in connection with the delay in reporting and her lack of avoidant behaviour. However, after a day of cross-examination of AB there were other reasons, based on her own admitted conduct, to doubt her truthfulness. AB’s senior counsel made a timely objection to the Magistrate’s comment that he was ‘troubled by this evidence of your client’, and to the strength of some of his earlier indications. The Magistrate responded appropriately. He acknowledged that he may have gone ‘a little bit over-the-top’, and explained that he was giving an indication of his early thinking to assist the parties. He accepted that he had to hear all of the evidence, including that of CD and Dr Hacker, before reaching a decision.

Nor do I consider that the fair-minded lay observer would think that the Magistrate had closed his mind by the third day of the trial because, ultimately, he disbelieved AB for reasons he had foreshadowed early in the hearing. That conclusion would not be reasonable, given that the trial went for nine more days, during which the Magistrate did nothing further to suggest that he had prejudged AB’s credibility. It would also involve reasoning backwards from the result.

The Magistrate’s failure to refer in his reasons to the evidence of Dr Hacker, which specifically addressed delayed reporting by victims of sexual assault, is the subject of AB’s second ground of appeal.

Because of the conclusion I have reached, it is not necessary to deal with XYZ’s contention that AB waived her right to object on the ground of apprehended bias.

For completeness, I explain below my reasons for not accepting a number of other submissions made by AB in support of her first ground of appeal.

Prolonged cross-examination

First, AB pointed out that she was subjected to a prolonged cross-examination over six days, which the Magistrate did not seek to limit or control. AB submitted:[41]

This created the perception the magistrate held the belief that women who allege sexual assault are inherently unreliable and need to be subjected to an extreme form of credibility testing. The cross-examination was oppressive, it was repetitive and much of it was inane and irrelevant.

She argued that this prolonged cross-examination gave rise to concerns about the fairness of the proceeding.

[41]Appellant’s written submissions dated 27 June 2019, [226].

The cross-examination of AB was extraordinarily long. It was a comprehensive attack on her credibility, in which she was taken to a multitude of emails that she wrote to CD during her employment with XYZ and after its termination. Numerous other communications were also put to her, including a number of emails sent in the name ‘Angela M’, which it was suggested were sent by AB. No stone was left unturned.

The effectiveness of the cross-examination was not proportionate to its length. This should have been obvious by the end of the third day of the trial, when the Magistrate asked senior counsel for XYZ not to ‘go into overkill with copious material to try and ram the point home, driving … a carpet tack in with a sledgehammer’.[42]
[42]Trial transcript 259:11-16.

With the benefit of hindsight, the cross-examination could have been better managed. The lawyers representing XYZ could have been more selective about the material to be put to AB, and should have taken into account the law of diminishing returns. For her part, AB’s answers were often argumentative or unresponsive, and she did not always heed the Magistrate’s requests to answer the questions she was asked. And the Magistrate did not invoke any of his powers under the Civil Procedure Act 2010 (Vic) to control the cross-examination, despite his evident frustration at the course it was taking.

While the length of the cross-examination was regrettable, it was not unfair. Significantly, AB was represented by experienced senior counsel throughout. He took numerous objections during the cross-examination. On the fourth day of the trial, which was a Friday, he sought an adjournment on AB’s behalf because ‘she’s both physically and mentally exhausted’. The Magistrate granted that adjournment, and the cross-examination resumed the following Monday. AB’s counsel did not, however, ask the Magistrate to control the length or breadth of the cross-examination. In those circumstances, I cannot conclude that the cross-examination was unfair. Nor did it give rise to a reasonable apprehension of bias on the part of the Magistrate.

Clothing and sexual history

AB also relied on a question asked by the Magistrate about her clothing, arguing that this indicated that his Honour considered that what she was wearing was relevant to her credibility. She submitted that it was difficult to imagine a male worker being asked the same question.

The question was asked by the Magistrate after AB had given evidence to the effect that she was wearing ‘work clothes’ on one occasion in mid-January. His Honour then asked: ‘When you were wearing work clothes, what did you wear mainly? Did you wear loose dresses or suits?’. AB replied that she wore a suit – a skirt and a jacket.[43]
[43]Trial transcript 60:27-30.

In its context, there was nothing objectionable about the question. AB had described the clothing she was wearing in general terms, and the Magistrate sought clarification of her answer.

AB also complained that she had been cross-examined about her sexual history and her use of the contraceptive pill. She argued that these questions, and the Magistrate’s insistence that she answer them, reflected ‘an unsupportable view that a wom[a]n’s sexual history is relevant to her credibility when determining if a sexual assault occurred’.[44]
[44]Appellant’s written submissions dated 27 June 2019, [218].

Again, the context in which the questions were asked does not support AB’s argument. AB introduced both issues in her evidence in chief. She gave evidence that she had had a casual relationship with CD in 2004 that was, very briefly, intimate.[45] She was also asked by her counsel whether CD had worn a condom on the first occasion that he sexually assaulted her. She said that he had not.[46]
[45]Trial transcript 40:24-41:7.
[46]Trial transcript 58:29.

In the circumstances of this case, cross-examination as to whether CD had worn a condom on any occasion, and whether AB was using the contraceptive pill at the time of the alleged sexual assaults, was relevant and permissible.[47] It is notable that, when AB queried ‘why you needed to ask that, other than to humiliate me’, her counsel did not object to the line of questioning.[48] When AB asked for a break during this questioning, the Magistrate granted it without demur.[49] His later direction that she answer the critical question was, in my view, appropriate and did not give rise to an apprehension of bias.[50]
[47]Trial transcript 267:20-268:28, 300:25-301:2, 302:30-304:16.
[48]Trial transcript 300:25-301:2.
[49]Trial transcript 301:3-4.
[50]Trial transcript 303:16-20.

Delay in delivering judgment

AB submitted that the Magistrate’s conduct following the conclusion of the hearing significantly exacerbated the appearance of bias, because the delay of nearly two years in handing down judgment was ‘contemptuous’. She argued that ‘the perception created was suggestive [that] the magistrate viewed women who make claims alleging sexual assault are “time wasters” and thus not entitled to prompt disposition of their claim’.[51]
[51]Appellant’s written submissions dated 27 June 2019, [243].

I agree that it took far too long for the Magistrate to make a decision. No doubt there were reasons for the delay, but parties to litigation are entitled to expect the wheels of justice to move faster than they did in this case. I can understand why AB felt the delay was contemptuous.

That said, I do not consider that the delay gave rise to a reasonable apprehension of bias against AB. It was also oppressive to XYZ and CD to have to wait nearly two years for a decision. As senior counsel for XYZ emphasised during the trial, the very serious allegations made by AB had already been hanging over their heads for a long time.[52] Since the claim clearly could not be resolved by agreement, it was in the interests of both parties for it to be determined in a timely way.
[52]Trial transcript 302:4-21.

The delay in delivering judgment is, however, significant to AB’s next ground of appeal.

Did the Magistrate fail to have regard to material considerations?

The second ground of appeal concerns the absence of any reference in the Magistrate’s reasons for decision to two pieces of evidence. The first was the expert evidence of Dr Sandra Hacker, in relation to the issue of AB’s delay in making a complaint. The second was an email sent by AB to CD in April 2008.

Evidence of Dr Hacker

Dr Hacker is a psychiatrist who was engaged by AB’s solicitors to provide a medico-legal report for the purposes of the Magistrates’ Court proceeding. She interviewed AB on 9 June 2015, and her first report was dated 16 June 2015. Her second report of 28 April 2016 confirmed her initial diagnosis, that AB was suffering from a chronic major depressive disorder with traumatisation and panic features.

After AB and CD had given their evidence in the Magistrates’ Court proceeding, the trial was adjourned for several months. AB’s solicitors provided Dr Hacker with the transcript of their evidence, and the reports of two other psychiatrists, Associate Professor Peter Doherty and Dr Paul Kornan, both of whom had provided reports at XYZ’s request. Dr Hacker was requested to provide a further report in relation to the following three matters:

A.The issue of delaying the reporting of allegations of sexual assault.
B.Is AB’s conduct and behaviour in delaying the reporting of allegations
a)consistent with a person who suffered such assaults; or
b)consistent with AB being a spurned woman; or
c)consistent with AB fantasising.

C.Is AB’s psychiatric/psychological condition during the period from December 2007 to 18 November 2010, relevant to her decision-making capacity at the time?

Dr Hacker provided a third report dated 3 August 2016, addressing these issues. It is worth quoting at length the section from this report about delayed reporting of allegations of sexual assault:

There is considerable literature on the factors influencing reporting of alleged sexual assault, which may be helpful in considering the issues related to both delayed reporting by Ms AB and whether or not the alleged assaults occurred.
In my experience, delay in reporting allegations of sexual assault is common.
The possible reasons for delay are outlined in the Bench Note: Effect of Delayed Complaint on Credit.
These are listed in paragraph 45 as:
•Being ignorant about the nature, quality and character of the act performed upon them;
•Feeling powerless (particularly where, as is usually the case, the offender is a family member or a close acquaintance);
•Trusting the offender or being emotionally dependent on them;
•Fearing family dissolution or punishment for the offender;
•Continuing to be in a sexual relationship with the offender;
•Feeling that the relationship with the offender is special;
•Being sworn to secrecy or compelled to secrecy by threats;
•Feeling responsible guilty or to blame for the acts;
•Feeling shame and embarrassment;
•Employing psychological strategies to cope with the abuse, such as repression or suppression of the acts; and
•Fearing discouragement or disbelief on the part of family and of officials.

In my opinion this is a relatively comprehensive and appropriate list of factors relating to reasons for delay.
The Australian literature also addresses delayed reporting:
“The psychological literature shows that delay is the most common characteristic of both child and adult sexual assault. Significantly in the context of this Inquiry, the ‘predictors associated with delayed disclosure’ reveal differences in reporting patterns depending upon the victims’ relationship with the abuser. For example, where the victim and defendant are related, research suggests there is a longer delay in complaint. Since complainants are routinely cross-examined by defence counsel about delays in complaint in ways that suggest fabrication, ‘it is likely that evidence about a complainant’s first complaint would answer the type of questions that jurors can be expected to ask themselves’.”[53]
[53]Citing Australian Law Reform Commission, Report on Family Violence, Chapter 27 – Evidence on Sexual Assault Proceedings Complaint, [27.296].
In my opinion the relevant factors concerning Ms AB and Mr CD in this case relate primarily to the context in which the alleged sexual assaults occurred.
Ms AB believed that she had information that could prove significantly detrimental to Mr CD … and that the sexual assaults were Mr CD’s way of exerting power over her so that she would not disclose her discovery.
Ms AB also stated that it was her view that she had to continue working in this relationship until the contract was ended as leaving early would, in her view, expose her to the shame and embarrassment of being asked why she had left, which would impact upon her professional reputation.
Thus the fear of shame and embarrassment appeared to be a significant factor in the delaying of reporting.
Ms AB also suggested that Mr [CD] at times became quite threatening and this is also reported in the evidence …
In my opinion however, the most significant issue concerning delay of reporting relates to the final bullet point, namely, “fearing discouragement or disbelief on the part of family and of officials”.
There are a range of reasons for reporting and not reporting sexual assault. …

The report then referred to published research about the reasons for not reporting sexual assault, and common personal and systemic barriers to reporting. Dr Hacker concluded that, in her opinion, ‘the delay in reporting the allegations does not make them any less likely to be true’.

Dr Hacker gave evidence at the trial on 8 November 2016, during which she adopted her reports. Her evidence, in particular her opinion on the issue of delayed reporting, was referred to in some detail in AB’s final submissions.[54]
[54]Plaintiff’s submissions dated 16 November 2016, [5.3]; Trial transcript 579:22-581:19.

In his reasons, the Magistrate identified Dr Hacker as a medical witness, but did not refer to the substance of her evidence. His Honour did not refer to Dr Hacker’s evidence on the issue of delayed reporting at any point in his reasons. In particular, there was no mention of this evidence in the Magistrate’s explanation of his reasons for disbelieving AB’s evidence as to the alleged sexual assaults – which included the fact that she made no complaint until 2011.

AB contends that the Magistrate was bound to take this evidence into account, and failed to do so. XYZ submits that it has not been established that the Magistrate failed to have regard to Dr Hacker’s evidence.

Before me, it was uncontroversial that, broadly speaking, the Magistrate was obliged to have regard to Dr Hacker’s evidence in reaching his decision. A Magistrate determining a disputed workers’ compensation claim is obliged to examine the whole of the evidence, including the medical evidence.[55]
[55]Pulling v Yarra Ranges Shire Council [2018] VSC 248, [50].

XYZ submitted, however, that Dr Hacker’s opinion simply went to possible explanations why victims of sexual assault in general might not promptly report the assault. It did not, XYZ argued, go to the reasons that AB herself gave for not telling someone earlier, and so the opinion was of peripheral importance. XYZ submitted that the Magistrate decided the case on the basis of the explanations actually given by AB for not reporting the sexual assaults sooner than she did. It followed, as I understood the submission, that there was no need for the Magistrate to refer to Dr Hacker’s opinion in his reasons because it was not material to his decision.

In my view this submission mischaracterised the evidence of both AB and Dr Hacker.

As noted above, the Magistrate considered and rejected AB’s explanation that she did not complain because she did not want her employment terminated.[56] However, this was only one of several reasons given by AB for not reporting the sexual assaults earlier. In her evidence in chief, she said that there was no-one to complain to,[57] and that, even if there had been, she felt so humiliated and ashamed that she would not have said anything.[58] She felt loyalty to CD and XYZ,[59] while at the same time fearing how CD would respond if she raised anything.[60] In particular, CD had her convinced that she would never get another job.[61] Towards the end of her evidence in chief, AB explained why she had lost contact with her friends:[62]
[56]See [29] above.
[57]Trial transcript 79:12-13; 82:2.
[58]Trial transcript 79:13-15; 120:27-121:23.
[59]Trial transcript 82:9-14.
[60]Trial transcript 81:26-82:5; 118:1-9; 134:9-18.
[61]Trial transcript 118:10-22.
[62]Trial transcript 120:27-121:23.

Why did you lose contact or drop contact with your girlfriends and other friends who you had dealings with before you came to this company?---I think I just felt just completely – it’s almost, you know, you feel ashamed and humiliated by what’s happened, you just don’t want anyone to know. Because, you know, a number of incidents before I was terminated, as I said, people were clearly starting to detect that something was going on, and you just withdraw and it’s almost just a coping thing, you sort of split yourself in two, you know, there’s this person and he’s doing all these things to you and then you just sort of try and be on autopilot and just sort of get by.
Have you told any of your girlfriends?---No.
Have you told your parents?---No.
Have you told your brother?---No.
Why not?---I just don’t want to.
Why don’t you want to?---Because I just don’t want to.
HIS HONOUR: Are they aware of this legal proceeding?---No.
MR GYORFFY: Can you be more specific about why you don’t want to?---I just don’t want anyone to know what had happened.
Why don’t you want them to know what happened?---It’s just - and probably even more so now knowing how people, once you mention the words, you know, sexual assault or rape, the general responses from people are very negative. And so, that just serves to keep you more and more silent.

Under cross-examination, AB said she did not want to inflame the situation by writing a complaint,[63] and that the one time she said something directly, CD called her and said he would destroy her and ‘so it was made very clear to me never to raise it again’.[64]
[63]Trial transcript 201:8-11.
[64]Trial transcript 366:31-367:5, 378:9-14.

There was some correspondence between the reasons given by AB for not reporting the alleged sexual assaults, and the common reasons for delayed reporting identified by Dr Hacker. In particular, AB’s reasons included being compelled to secrecy by threats, feeling shame and embarrassment, and fearing discouragement or disbelief on the part of family and officials. The Magistrate did not assess these reasons given by AB for her delayed complaint in the light of Dr Hacker’s evidence. Indeed, there is no indication in his reasons that he considered them at all.

Contrary to XYZ’s submission, in the circumstances of this case the evidence of Dr Hacker was critical. Her opinion that the delay in reporting the allegations of sexual assault does not make them any less likely to be true was salient to the central issue of AB’s credibility. In my view, it was of such importance that, if Dr Hacker’s opinion was disregarded, it could not be said that AB’s credibility had been properly considered.[65] The opinion was all the more important because of the objection that had been taken to the Magistrate’s preliminary indications, and his Honour’s apparent acceptance of the submission that he should assess AB’s credit in the context of the whole of the evidence, including the ‘pretty vital’ evidence of Dr Hacker.[66]
[65]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 61 (Brennan J); Macedon Ranges Shire Council v Romsey Hotel Pty Ltd (2008) 19 VR 422, [47].
[66]See the exchanges set out at [49]-[50] above.

Next, XYZ submitted that the Magistrate did in fact consider Dr Hacker’s evidence on the issue of delayed reporting. As XYZ pointed out, the Magistrate referred in general terms to the medical evidence. His Honour introduced his findings by saying:

Upon reviewing the transcript, my notes, the emails exhibited and taking into account the medical evidence, the IT evidence, the specialists’ reports and counsels’ detailed submissions, I am not satisfied on the balance of probabilities that the unwanted sexual assaults of which AB complained in her evidence, ever occurred.

XYZ submitted that it must be inferred from this that the Magistrate considered Dr Hacker’s evidence about the possible reasons for delayed reporting by a victim of sexual assault.

In an ordinary case, I would accept that the failure by a magistrate to refer specifically to evidence does not mean that the evidence was overlooked. However, in this case there was a substantial delay between the hearing and the decision. By the time the Magistrate delivered his reasons, on 17 July 2018, it was 20 months since he had heard Dr Hacker’s evidence, and more than two years since AB and CD had given evidence. The delay was so long that I am not prepared to assume that the Magistrate considered Dr Hacker’s evidence.[67] To the contrary, I am persuaded that he disregarded it.
[67]Braham Investments Pty Ltd v Wantrup [2018] VSCA 291, [223]-[226].

The transcript of the Magistrate’s oral reasons discloses a number of factual errors that suggest he did not comprehensively review the evidence before delivering his decision. For example:

(a) The Magistrate said that he found it hard to accept AB’s explanation for not complaining of sexual misconduct in an email of complaint dated 12 March 2008. AB’s evidence was that she wrote this email after the incident when CD returned to the office late on 12 March and taunted her and flicked her head, and her complaints were about what had just happened. The Magistrate did not accept this, ‘seeing that the alleged sexual activity, and the other conduct complained of all occurred on the afternoon and evening of the same day’. It is clear from the transcript, however, that AB did not allege any sexual assault on 12 March. The Magistrate appears to have merged her evidence about what occurred on 12 March 2008[68] with her evidence about a sexual assault five days earlier, on 7 March 2008.[69]
[68]Trial transcript 104:24-106:22 (all of incident of 12 March 2008).
[69]Trial transcript 95:11-97:13, 102:11-103:24 (all of incident of 7 March 2008).

(b) His Honour misdescribed the course of AB’s evidence in chief. In his reasons, he said: ‘Finally, in her evidence in chief after almost 3 days, with all sorts of interruptions, some due to AB’s mental state and having to take a break, she gave evidence about her current mental state ...’. In fact, AB’s evidence in chief lasted just over one day – commencing at about 11:20am on 28 June 2008, and ending before lunch on 29 June 2008. Other than lunch on 28 June, the only other break was a 10-minute mid-morning break on 29 June 2008, which was called by the Magistrate.

(c) In several places in his reasons, the Magistrate gave the wrong date for the termination of AB’s employment. The letter of termination was dated 19 March 2008, and there was no dispute that she was dismissed on that day. And yet the Magistrate referred to the summary termination of her employment ‘by letter dated 19 April 2018’, ‘the termination of her contract on 19 April 2008’ and ‘the summary termination of her contract of employment on 19 April 2008’. This error was reflected in the final order, that XYZ pay AB weekly payments and medical and like expenses ‘for the period 19 April 2008 to 1 March 2010’.

(d) His Honour also mistook the evidence about the contract work that AB performed for CD in 2010. Both AB and CD gave evidence that she did that work in March 2010. AB said there was a period in around March 2010 when she did some work.[70] CD said that he gave her some work in March 2010, and that she completed it to a high standard.[71] Neither of them suggested that the work was ongoing or continued until August or September 2010.

[70]Trial transcript 138:23-24, see also 341:26-29.

[71]Trial transcript 460:27-461:11.

These errors, together with the delay between trial and judgment, lead me to conclude that the Magistrate did not consider the whole of the evidence in reaching his decision. In particular, I am satisfied that his Honour did not refer in his reasons to Dr Hacker’s evidence about delayed reporting of sexual assault because he did not consider it. The evidence was of such importance that the failure to consider it was an error of law.

Email of 15 April 2008

The second piece of evidence that AB claimed the Magistrate had overlooked was an email that she wrote to CD on 15 April 2008, about a month after the termination of her employment. The email read:

[CD], you are renowned for re-writing history to suit yourself.
Do you think [XYZ’s lawyer] will be open to my additional claim for the provision of unpaid sexual services on level 35 that you expected that I provide you with over many months? Or did you view this as your entitlement and as all included in the $16,000 I was paid a month?
Better still, how about the option to reinstate and you could specifically include that I was to provide you with sex a couple of time[s] a week. And if I didn’t, you could sack me again for not performing my job to your satisfaction.
Think of it, not only do you get the opportunity to work with my wonderful self, you get the privilege of my hard work and knowledge to help you, AND you get free sex when ever you want it.
How could you turn down an offer like that!

CD replied ten minutes later, saying simply: ‘You are disgusting’.

The email was tendered as Exhibit A, during AB’s evidence in chief.[72] AB was cross-examined about it the following day.[73]
[72]Trial transcript 124:12-125:10; 135:21.
[73]Trial transcript 225:22-227:19.

The Magistrate did not refer to this email in his reasons for decision, although it was clearly relevant to his assessment of whether to believe AB’s allegations of sexual assault. The email bore on two of the reasons given by the Magistrate for disbelieving AB: that there was no corroborating evidence, and that she made no complaint to anybody until over three years later. On its face, the email is more consistent with AB’s account than with CD’s denial of any sexual activity with AB during her employment at XYZ.

XYZ submitted that it is most unlikely that the Magistrate completely ignored an exhibit, and that such an inference should not be drawn.[74] Ordinarily, I would accept that submission. However, for the reasons already given in relation to Dr Hacker’s evidence,[75] I am not confident that the Magistrate did consider the email’s significance. In the circumstances of this case, in particular the very long delay between trial and decision, I conclude that his Honour did not refer to the email because he overlooked it. This failure to have regard to relevant evidence was another error of law.
[74]Citing Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594, [33] (French CJ and Kiefel J), [66]-[73] (Gummow J).
[75]At [89]-[91] above.

Because the Magistrate failed to have regard to relevant evidence, the appeal must be allowed. It remains to consider XYZ’s cross-appeal.

Did AB present a case that the injury was due to stress at work?

XYZ cross-appealed against the Magistrate’s findings that, from 19 April 2008 to 1 March 2010, AB had an incapacity for employment as a direct result of a mental injury arising out of or in the course of her employment with XYZ. His Honour found that, at the time of the summary termination of her employment, AB ‘was suffering from significant stress manifesting in burnout, overwork, lack of sleep, poor concentration, resulting in poor work performance, which meant that she could not perform her normal work properly’. It was on this basis that the Magistrate ordered XYZ to pay compensation to AB for the period 19 April 2008 to 1 March 2010.

XYZ contended that there was no evidence to support these findings. More particularly, it argued that:

(a) AB did not present a case that she had sustained a mental injury due to stresses on her beyond those associated with the alleged sexual assaults;

(b) There was no evidence to support a finding that, absent the alleged sexual assaults, AB was under stress at work due to her duties, hours, lack of support or CD’s management style; and

(c) A history of being sexually assaulted was fundamental to the medical opinion put before his Honour that implicated work as a cause of mental injury, and there was no evidence to support a finding that any mental injury suffered by the cross-respondent was due to stresses on her beyond those associated with the alleged sexual assaults.

AB submitted that her claim was always broader than the alleged sexual assaults, that XYZ had misunderstood her case from the outset, and that there was evidence to support the impugned findings.

AB’s case opened at trial

To reiterate, AB’s initial claim for compensation was in respect of psychiatric injuries, specifically post-traumatic stress disorder and depression, caused by ‘sexual assault and associated harassment and abuse’. The complaint filed by AB in the Magistrates’ Court alleged that she had suffered psychological/psychiatric injury ‘including but not limited to stress and anxiety’, and that she sustained these injuries ‘during the period from 28 December 2007 to about 19 March 2008, in circumstances where she was sexually assaulted and subjected to abuse, bullying and harassment in the workplace’ by CD.

Senior counsel for AB opened her case by referring to the pleadings. He then went into the detail of the matters that AB alleged caused her injuries:[76]
[76]Trial transcript 12:22-29.

The plaintiff will tell Your Honour that the circumstances in which the injury arose were sexual assaults commenced on about 28 December 2007. She will relate a number of incidents between then and the middle of March, shortly after which she was sacked.
The incidents are very similar in nature and I’ll only take Your Honour through a couple of them so that you get an idea of what it’s about.

There followed a detailed description of the first alleged assault, on 28 December 2007. He continued:[77]

On different dates you will hear, there are several other similar incidents that she’ll tell you about, culminating on about 14 March when CD entered into an uncontrollable rage during which he threatened the plaintiff and slammed her into a wall.

[77]Trial transcript 13:21-25.

After referring to the treatment AB had received, senior counsel turned to the injuries for which she sought compensation:[78]

Since the incident at work between 28 December 2008 and 19 March 2009, the plaintiff has suffered depression and has been frustrated by limitations placed on her life. …
She lost confidence in herself, she became irritable and moody. She will tell you, she lost her sense of autonomy and control of mastery over her own body. Her sense of self was shattered. She’ll tell you she often experiences intense emotional episodes, intense and pervasive fear, and is terrified of coming into contact with CD. She is constantly pre-occupied by the fact she was raped, exploited, victimised and terrorised. She feels unable to talk about her circumstances. She’s fearful of anybody finding out.
She has shame, humiliation, embarrassment, loss of dignity as a human being. She has feelings of anger and hatred towards herself. She has significantly withdrawn socially. From late 2008 and 2009, till 2009, she barely ever left the house. She cannot face people. She sees herself as a prisoner in her own home. She no longer pursues or participates in hobbies and outside interests.
She’s suffered a loss of peer and institutional relationships and she contemplated suicide. In terms of her daily living, she has difficulty to fall asleep, she has poor sleep patterns, she’s agitated, she has a fitful, hyper alert state, sweating, heart palpitations.
The problems for work: her concentration levels have deteriorated, she’s often disorganised and forgetful, unable to think clearly, ability to articulate in writing or verbally affected. She has an inability to deal with issues. She is often not in a fit state to make rational decisions. She’s lost confidence in her ability as a businesswoman and as a person. She says she’s losing her sense of identity and purpose.

[78]Trial transcript 14:6-15:20.

My Gyorffy then outlined the medical evidence and the diagnoses of major depressive disorder and post-traumatic stress disorder. He concluded:[79]

Your Honour’s function here is not simply to determine whether AB is telling the truth in isolation of her own evidence. Your Honour, as a matter of law, is to find whether in this case, the only issue being whether it came out of her work relationship on her account, what Your Honour has to determine is whether or not you’re satisfied on the balance of probabilities, taking into account all the evidence, including AB’s statement, including the statement of all the other witnesses, including the doctors and so on, whether you are satisfied that what she suffered was sexual assault and abuse and bullying and harassment in the workplace; because it’s a given, if you accept that, that the rest falls into place. So this case is about just that small element.
[79]Trial transcript 25:7-21.

The Magistrate’s alternative case

During her cross-examination, the Magistrate asked Dr Hacker to comment on a scenario that emerged from the evidence:[80]

HIS HONOUR: What is your comment, doctor, on that scenario, with a person over the Christmas period being overworked, not getting support from her direct superior, and then finding out - forget whether or not she found out about any financial malpractice, we really didn’t get into that - but she says she found out that he was off playing golf somewhere; would that give rise to a stressful situation?---It may.
Could that account for, when she finally - as I understand it, she goes to the board with these problems and her contract’s terminated the following day?---It is, yes.
Can that give rise later to complaints of the like that she has made against this person?---It’s possible.
Leaving aside any question of sexual involvement, whether there was sexual involvement or not?---It’s possible.

[80]Trial transcript 712:13-27.

At the close of the evidence, his Honour outlined the matters on which he wished to receive submissions:[81]

The other comment I’ll make is this: in your submissions, I don’t want you to lose sight of the fact, both of you, I don’t want you to lose sight of the fact that this is a claim against XYZ Pty Ltd for a stress-related injury arising out of or in the course of the employment, and various matters have been given in evidence. The main focus of this case seems to have been upon the conduct of Mr CD … in relation to his sexual behaviour towards Ms AB. This case, in one way, could be seen to have been conducted more like a criminal trial involving Mr CD than a worker’s compensation stress claim. But I want you to turn your attention to the Accident Compensation issues in relation to stress.

[81]Trial transcript 817:17-818:2.

Counsel for XYZ immediately took issue with this indication, pointing out that AB had made a very specific claim in relation to sexual assault and associated harassment and abuse, and so she had to prove ‘more than merely some stress arising out of or in the course of her employment’.[82] This position was reinforced during final submissions on 17 November 2016. On the other hand, AB submitted that her claim was not limited to the alleged sexual assaults, and emphasised the no fault nature of the workers’ compensation scheme under the AC Act.
[82]Trial transcript 818:8-27.

The Magistrate preferred AB’s position on the scope of her claim. He explained in his reasons why he took the broader view:

The very comprehensive and articulate written submissions on behalf of the Defendant, and Ms Manova spoke persuasively to those submissions, urged me that I should not cherry-pick – to use my words – because the original claim form was specifically limited to a claim described as “sexual assault and associated harassment and abuse” and her argument was that therefore the claim was essentially limited to the sexual allegations. In other words, if I found them not proved, the Defendant’s submission was that the claim should fail altogether.
Mr Gyorffy in answer to the specific question of mine in response, argued that I could have taken into account the broader allegations of harassment and abuse. Independently of Mr Gyorffy’s argument, I considered the claim form, the pleadings to which I referred earlier, the beneficial nature of the accident compensation legislation and the obligations of the Court pursuant to the Civil Procedure Act and Rules and I came to the conclusion that I should take all of those matters into account and not limit the jurisdiction of the Court in this case simply to the sexual assault allegations in the claim form. It is for these reasons that I am prepared to take a broader view in this case and, while rejecting AB’s evidence regarding the sexual assault, I am prepared to accept her evidence, as I said earlier, concerning the general conditions of her employment and the conduct of and lack of response of both Mr CD and XYZ in relation to the issues she raised in the emails referred to. As I have said, I’m prepared to take [a] broader view concerning the claim and the pleadings in the context of beneficial legislation and deal with these issues now, rather than taking a narrow view which must result in the dismissal of these proceedings forcing the generation of a further claim and further lengthy and costly litigations and lengthy delays having regard, as I said, to the Court’s obligations pursuant to the Civil Procedure Act and Rules. As far as I am concerned, all issues have been ventilated over many days of litigation and I shall deal with them now.

The Magistrate then summarised his findings, set out at [33] above.

AB’s case was not a stress claim

In its final submissions, XYZ submitted to the Magistrate that the jurisdiction of the Magistrates’ Court was limited to determining the dispute about its claims agent’s decision to reject AB’s claim for psychiatric injuries arising from ‘sexual assault and associated harassment and abuse’. This argument was not put on appeal.

XYZ’s contention on appeal was that it was not procedurally fair for the Magistrate to decide a different case from the one presented at trial. It put a similar submission to the Magistrate, arguing that it was not open to him to make a finding of compensable injury on the basis of a case that was not litigated,[83] and that determining the case on an alternative basis would unfairly prejudice XYZ.
[83]Citing 2010] WASCA 120, [41]-[55].

I accept this submission. Taking the broadest possible view of AB’s claim, as it was initially framed and as it was opened at trial, it was not a stress claim. It was a claim for compensation for serious psychiatric injuries caused by traumatic incidents during her employment, namely sexual assaults by CD, and harassment and abuse associated with those assaults. It was not fair for the Magistrate to decide the case on a very different basis.

In reaching this conclusion, I have been careful not to take a narrow or technical view of the issues on which the trial was fought.[84] I have reviewed the initial claim form, the pleadings in the Magistrates’ Court, the opening and closing submissions and the transcript of the evidence at trial. Having done that, the only conclusion I can reach is that the Magistrate decided a different case from the one that was presented to him by AB and defended by XYZ.
[84]Water Board v Moustakas (1988) 180 CLR 491, 497.

I am conscious that the incidents that AB said caused her injuries were not limited to the alleged sexual assaults. They included two incidents involving intimidation and physical assault.

The first of these incidents was described by AB to have occurred late on 12 March 2008, when she was working late in the office.[85] AB said that, at around 9:30pm, she turned around and found CD behind her. He taunted her, called her ‘useless’, and repeatedly flicked her on the side of her head. AB’s evidence was that she was terrified and at that point believed that CD was going to kill her. CD denied ever taunting AB or flicking her on the head.[86]
[85]Trial transcript 104:24-106:22 (all of incident of 12 March 2008).
[86]Trial transcript 438:30, 439:2-3.

AB described another traumatic incident that she said occurred on 14 March 2018. She was not at work that day because she was unwell, and was also to attend her uncle’s funeral that afternoon. At about midday, CD called AB and said that he had an urgent meeting offsite, and that she had to go into the office. She did so, and was unable to attend the funeral. When she arrived at the office, she found out that CD was in fact playing golf. On CD’s return, AB confronted him about this and ‘about his continual lying and his behaviour’ and said that she was going to make a formal complaint to the board about the sexual assaults.[87] At this, AB said that CD flew into a ‘black rage’ and slammed her into the wall, saying that nobody makes complaints about him, and no-one goes over his head.[88] CD denied ever slamming AB into a wall.[89]
[87]Trial transcript 108:10-13.
[88]Trial transcript 108:14-17.
[89]Trial transcript 438:31-439:1.

Unfortunately, the Magistrate made no specific findings about either of these alleged incidents. Rather, he made a blanket finding that he was not satisfied that any of the alleged sexual assaults occurred. He went on to make another general finding that AB suffered from ‘significant stress’ due to her onerous duties, multiple roles, long hours, and the management style of CD and the other directors of XYZ. It is not possible to tell from his Honour’s reasons for decision whether he considered the two alleged assaults to be incidents of sexual assault, or aspects of CD’s ‘management style’, or whether he overlooked them altogether. I cannot conclude that he found these allegations proved, or that they formed any part of his ultimate findings.

Was there evidence that the injury was due to work stressors?

XYZ also submitted that there was no evidence to support the Magistrate’s finding that AB was under stress at work due to her duties, hours, lack of support or CD’s management style. I do not accept that submission. There was ample evidence that AB was working long hours, in a difficult and demanding role, and that she was in ongoing conflict with CD about his management style. Her email dated 29 November 2007, quoted at length by the Magistrate in his reasons, painted a vivid picture of a stressful working environment. So did the emails of 12 March and 16 March 2008, written by AB near the end of her employment.

However, I do accept XYZ’s submission that AB’s history of being sexually assaulted was fundamental to the psychiatric injuries with which she had been diagnosed, and that there was no evidence that her injuries were due to other work stressors. All of the medical opinion related AB’s entrenched psychiatric disorders to her history of having been sexually assaulted by CD during her employment with XYZ. There were passing references in some of the reports to the incidents of intimidation and physical assault,[90] in the context of repeated sexual assaults by CD. But none of the medical reports suggested that AB was suffering from an incapacitating psychiatric condition due to lower order work stressors. Nor did Dr Hacker’s answers to the Magistrate’s questions, set out at [105] above.
[90]For example, in the report of Dr Rowan McIntosh dated 29 October 2012, the report of Dr Albert Kaplan dated 2 February 2015, and the report of Dr Sandra Hacker dated 16 June 2015.

To put it a different way, AB was only entitled to compensation under the AC Act if she suffered ‘an injury arising out of or in the course of employment’.[91] It was not sufficient for the Magistrate to find that AB was suffering from ‘significant stress’ in her work. Stress is not an injury. It can of course be a cause of mental injury, but whether that is so is a matter for medical evidence. In this case, there was no medical evidence to the effect that AB had suffered an injury due to general work stress. In fact, the Magistrate put aside all of the medical evidence tendered by the parties because ‘based on my findings, the factual basis for the medical opinions has not been established’. There was no other evidence of injury, and no basis for the Magistrate to find that AB had an incapacity for work due to a mental injury.
[91]Accident Compensation Act 1985 (Vic), s 82(1).

It follows that the cross-appeal must be allowed. It is therefore not necessary to consider whether there was any evidence to support the Magistrate’s finding that AB’s incapacity ceased in March 2010.

Disposition

XYZ has leave to cross-appeal, to the extent it is required, under s 109(4) of the Magistrates’ Court Act.

I will also make orders allowing the appeal and the cross-appeal, and setting aside the orders of Magistrate O’Brien made on 17 October 2018.

I can see no alternative to remitting the proceeding to the Magistrates’ Court for hearing and determination by a different magistrate. I will make that order with regret, given the long and unfortunate history of the claim, and the unanimous medical opinion that AB was, in 2016, suffering from a disabling and chronic psychiatric injury. I will add to the order a request that the rehearing is listed with priority.

I will hear the parties on the question of the costs of the appeal and the cross-appeal.

[2019] VSC 788

3 December 2019