Bishop v Takla
[2004] FMCA 74
•25 February 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BISHOP v TAKLA & ORS | [2004] FMCA 74 |
| HUMAN RIGHTS – Sexual harassment in the workplace – where alleged harassment occurred over long period of time –– where applicant settled claim with second and third respondents – where court remains unaware of particulars of settlement until after the matter determined – amount from settlement to then be deducted from damages awarded – claims of inappropriate comments, invasion of space and unwanted touching – where respondent denied that his behaviour towards the applicant had sexual overtones – where incidents resulted in applicant developing post traumatic stress disorder – whether actions complained of constitute sexual harassment within the meaning of s.28A Sex Discrimination Act. BANKRUPTCY – Where first respondent claimed he was bankrupt – where court granted leave to continue proceedings pursuant to s.58(3)(b) of the Bankruptcy Act. EVIDENCE – Whether first hand hearsay exception applies – whether representations made by applicant to her boyfriend and mother were “fresh in her memory” when made – whether, if admitted, such evidence would be unfairly prejudicial to respondent – where Court required to consider whose evidence is preferable in the circumstances. |
Sex Discrimination Act 1984 ss. 28A, 28B(2)
Bankruptcy Act 1966 (Cth) s.58(3)(b)
Evidence Act 1994 ss.64(3), 135
Federal Magistrates Court Rules 2001 Part 21 Rule 21.02(2)(b), Schedule 1Midland Credit Limited v Official Trustee in Bankruptcy (1992) 68 FLR 53 Allanson v Midland Credit Limited (1977) 30 FLR 101
Leslie v Graham [2002] FCA 32
Graham v The Queen (1998) 195 CLR 606
R v Adam AKAOdishou (1999) 47 NSWLR 267
Papakosmas v The Queen (1999) 196 CLR 297
R v BD (1997) 94 A CRIM R131
Briginshaw v Briginshaw (1938) 60 CLR 336
Hillroy v Angelo 181 ACR 57
Evans v NCA [2003] FMCA 375
| Applicant: | CHARLOTTE LOUISE BISHOP |
| First Respondent: | SHERIF TAKLA |
| Second Respondent: | TZENOS CATERING PTY LTD |
| Third Respondent: | TONY TZENOS |
| File No: | SZ 1804 of 2003 |
| Delivered on: | 25 February 2004 |
| Delivered at: | Sydney |
| Hearing date: | 13 February 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| Counsel for the Applicant: | Mr P Moorhouse |
| Solicitors for the Applicant: | Legal Aid Commission of New South Wales |
| For the Respondent: | Respondent in person |
ORDERS
The Court declares that the first respondent unlawfully sexually harassed the applicant contrary to s.28B(2) and 28A of the Sex Discrimination Act 1984 in the manner set out in the following Reasons for Judgment.
The Court orders that the first respondent pay to the applicant damages including interest thereon in the sum of $24,386.40.
The first respondent pay the applicant’s costs of the proceedings to be calculated pursuant to Part 21 Rule 21.02(2)(b) and Schedule 1 of the Federal Magistrates Court Rules.
The Court notes that insofar as the same shall have been considered necessary it grants leave nunc pro tunc to the applicant to continue these proceedings pursuant to s.58(3)(b) of the Bankruptcy Act 1966 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 1804 of 2003
| CHARLOTTE LOUISE BISHOP |
Applicant
And
| SHERIF TAKLA |
First Respondent
| TZENOS CATERING PTY LTD |
Second Respondent
| TONY TZENOS |
Third Respondent
REASONS FOR JUDGMENT
(Corrected Judgment)
Introduction
These proceedings are brought by Ms Charlotte Bishop claiming that the first and only remaining respondent to these proceedings acted in breach of s.28B(2) of the Sex Discrimination Act1984 which is in the following terms:
28B(2)“It is unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer.”
The meaning of “sexual harassment” is set out in s.28A of the Act in the following terms:
28A Meaning of sexual harassment
“(1) For the purposes of this Division, a person sexually harasses another person (the person harassed ) if:
(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
(b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed;
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.
(2) In this section:
conduct of a sexual nature" includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.”
Ms Bishop complains of a series of activities on the part of Mr Takla ranging from invasion of her personal space through improper and suggestive remarks to unwanted physical contact. She claims that these activities occurred over a long period but were significant during the final four months of her employment by the second respondent. The first respondent denies these allegations.
Today was the first time in the history of these proceedings that the first respondent appeared. At first he was represented by a solicitor instructed by Legal Aid on an application for an adjournment. For the reasons given in the decision which is annexed I declined to grant an adjournment and the solicitor withdrew. The first respondent then proceeded as a litigant in person.
When making the application for an adjournment the solicitor acting for the first respondent indicated that he had been instructed that his client was bankrupt. During his final submission the first respondent also informed me that he was bankrupt. No evidence about his bankruptcy was brought. I do not know when it is alleged to have commenced, if it has expired through passage of time, who is the trustee or whether the respondent is actually bankrupt as opposed to being a person who had been in receipt of a bankruptcy notice. In order to regularise this I would propose to grant leave to continue these proceedings pursuant to s.58(3)(b) of the Bankruptcy Act 1966 (Cth) on the basis that the relevant issues can be better and more comprehensively dealt with in these proceedings rather than in fresh proceedings in the context of an appeal against a trustee’s disallowance of a proof of debt; Midland Credit Limited v Official Trustee in Bankruptcy (1992) 68 FLR 53 noting that the existing proceedings are now ready for trial, the facts are complex and the issues will be better and more comprehensively dealt with in the context of these proceedings; Allanson v Midland Credit Limited (1977) 30 FLR 101[114-115].
The proceedings brought against the second and third respondents were the subject of a settlement following mediation. Particulars of the settlement have been provided to me in a sealed envelope. It has been agreed between the applicant and the first respondent that if I should find against the first respondent in these proceedings I should determine a total amount of damages both general and special that should be paid to the applicant. I would then deduct from that amount the agreed settlement between the applicant and the second and third respondents. I would not be aware of the amount of that settlement until after I had made my determination. The parties also agreed that I could open the envelope in the privacy of my chambers and make the calculations within these reasons. I appreciate that this approach may not provide perfection in the apportionment of damages between the three respondents. But if I was to make a separate determination of the first respondent’s liability this may result in the applicant being over compensated. The second respondent’s settlement could have been based upon its vicarious liability for the acts of the first respondent. It seems to me that in all the circumstances the approach taken with the agreement of the parties would provide the fairest result.
The evidence
Ms Bishop commenced employment with the second respondent at the Australian Eighteen Footers Leagues Club at Double Bay (the “Club”) as a waitress in late April or early May 2000. In August 2000 she was given a regular five day lunch shift. In November 2000 she commenced work at the Embassy Nightclub in Double Bay. The first respondent Mr Takla was a chef at the Club and also employed by the second respondent. Mr Takla was therefore a fellow employee of Ms Bishop for the purposes of s.28B(2) of the SDA.
Early in her employment Ms Bishop told staff at the Club that she went horseriding at Malabar Riding School every Saturday. Mr Takla offered to accompany her to one of these riding sessions but she deposed to having been warned off him and tried to avoid this occurring. She claimed that he badgered her about going for a few weeks but eventually forgot it. Mr Takla admits that he offered to join her on a ride. He denied badgering her and said that his actions did not have any sexual element to them.
Ms Bishop also deposed to the fact that in August 2000 she was interviewed by the television program “A Current Affair” about some reconstructive surgery she had undergone. She discussed this with members of staff. Mr Takla asked her for a copy of the tape because he had not seen the interview on television. The applicant was again warned off giving Mr Takla the tape and she declined to do so making an excuse that she had given it to a work colleague. Mr Takla admitted that he had asked for the tape and said that his interest was quite innocent as he had not seen the program and it did not constitute unwelcome conduct of a sexual nature.
Ms Bishop deposed to the fact that about six months after she started work Mr Takla began to make what she considered inappropriate remarks. Two which she identified were making comments such as:
“Can you check table sex.”
instead of table six and when he served up an octopus dish he would tell her it was “octopussy”. Ms Bishop felt that the remarks being made by Mr Takla were directed specifically at her and that they had sexual connotations because of the suggestive tone in which he made them and the fact that he looked directly into her eyes.
“Sometimes when he was giving me a plate with octopus on it he would not let go of the plate when I tried to take it from him and would hold my gaze and say “octopussy” in a creepy and sleazy tone. I would look away quickly and ignore him even though these comments made me feel embarrassed, uncomfortable and intimidated.”
Other comments of a sexual and inappropriate nature alleged by the applicant included:
“For example, if I asked something like “Can I have that plate?” he would say words to the effect of “What’s that? You need sex?” or “You want sex?” “Or you want some?”.
Mr Takla denies these overt sexual comments. In regard to the comments concerning “table sex” he says that he has a thick Egyptian accent which may have confused the applicant. In regard to the reference to “Octopussy” he says this is a common Greek word for octopus which is used throughout the restaurant.
Ms Bishop complained that in about February 2001 Mr Takla who knew she was working at the Embassy Nightclub told her that he wanted to come up to the nightclub and have a drink with her. The applicant was uncomfortable about this and when she suggested that he come with his girlfriend, a fellow employee at the club, he said words to the effect “No Charlotte, may be I will come on my own.”
The applicant considered that these remarks constituted unwelcome conduct of a sexual nature. The respondent denied any sexual intent.
The applicant complained that in about April 2001 Mr Takla gave her his new e-mail address written on a piece of paper and said words to the effect of:
“I want you to send me an e-mail Charlotte”.
When she did not do so he would constantly remind her by saying words to the effect:
“Have you sent an e-mail yet? Why haven’t I got an e-mail from you yet?”
and
“Have I still got your e-mail address?”
She says that his persistent questions about why she had not sent him an e-mail made her anxious and uncomfortable. Mr Takla admits that he gave the applicant his e-mail address and asked her to send him an e-mail but otherwise denies these allegations.
Ms Bishop told the court that one of her responsibilities as a waitress was to make coffee. She said that when this occurred Mr Takla would sometimes come and stand very close behind her but not touching her:
“I could feel him there and he would whisper in my ear “Very nice. Very nice.”
When Sharif did this, I felt very uncomfortable and very anxious. I felt he was invading my space. I would just freeze, hold my breath and tried to shrink away from him. I would stay quiet and try and sidestep to get away from him. I found him and his behaviour very intimidating and I didn’t know what to do to stop it.”
Mr Takla agrees that he said words to the effect “Very nice” when the applicant was making coffee. He told the court that the applicant was the best coffee maker in the restaurant and he was only commenting on the quality of her coffee.
Ms Bishop gave evidence of further unwanted remarks:
“On several occasions during work when I was bent over to get a salad or bread roll or when I was cleaning up he would say things out of the blue like “I would rather have you from the other end” or “I would rather have you from behind”. The first few times he said words to this effect I would say words to the effect of “Oh Sharif don’t say that. That’s gross.” Despite my protestations he persisted with these comments. Eventually I just pretended not to hear him when he made such comments.”
Mr Takla absolutely denies ever making these remarks. He stated that he would be embarrassed to say things like that in the kitchen.
Ms Bishop deposed that in May 2001 at the end of a shift after greeting her Mr Takla crossed the room and came up behind her:
“He then rubbed his hand very slowly from between my shoulder blades down to the top part of my bottom. Then he whispered in my ear “Beautiful beautiful” and followed with a sound like a grunt of enjoyment… I didn’t like him touching me like that, I found him offensive and invasive, but I was too scared of him to retaliate. I froze in shock until he left.”
She stated that in the weeks thereafter Mr Takla continued to make sexual comments towards her and come up close behind her or rub past her whilst she was at the coffee machine. Once whilst she was at the register and putting the cupboard key away Mr Takla came past her and rubbed her on her back and said “hello”.
Mr Takla in his evidence said in relation to the remarks concerning the coffee that he only said “It is beautiful coffee Charlotte as usual.” He said in relation to the alleged incident of brushing into the applicant that this might have happened but it was unintentional as he was rushing to the kitchen when he was late for work. There was no sexual intention in relation to what occurred. Mr Takla denied the more obviously sexual rubbing incidents.
There was no oral evidence given directly corroborating any of these incidents. The applicant stated that the only person who could have given such evidence was a former colleague called “Lisa” who was still working at the Club and was therefore reluctant to come to court. Mr Takla pointed out that no-one had heard the remarks or saw the incidents apart from Lisa or someone called “Paul” who also did not give evidence. He said that Ms Bishop had told him to “fuck off” on at least three occasions and that on the first time she had come into the kitchen and given him a hug and said that she was sorry. She apologised on the second occasion but when it happened the third time he told everyone he would take her to court. Mr Takla also said that about two weeks before Ms Bishop left the job she lent him her car when his ran out of petrol and he did not think that this was something that would be expected from a person who was claiming that he had sexually harassed her.
The applicant left her employment at the Club in May 2001 after she had made both a written and oral complaint about the behaviour of Mr Takla to Mr Tony Tzenos, the third respondent and a director of the second respondent. She felt that the atmosphere in the Club had changed after she had made her complaints and shortly thereafter she was not put down for a shift. She knew that when people were not put down for a shift they never got any more shifts and so she took it that her employment had been terminated.
Mr Takla remained on at the Club. There was some rather confusing evidence concerning when he was told about the complaints being made against him. At first he said that he left the job shortly after the applicant did. However, a group certificate was produced indicating that he must have worked for some several months thereafter. He agreed that this was probably was the case and that he had left in September or October 2001. He said that his leaving came about at the same time Mr Tzenos had showed him a written complaint from the applicant.
The applicant called two further witnesses. The first was her mother and the second was her then and current partner Mr Weiss. Ms Marion Bishop’s evidence indicated that in the first few months of 2001 Ms Bishop had contacted her telling her that she was having problems at work although she had not specified them. She noticed that in April 2001 when the applicant went to visit her in Queensland for her birthday her behaviour was out of character. She was irritable and lethargic most of the time. She did not want to go out and she cried often and was not eating. The most important part of her evidence is contained in paragraph 11 of her affidavit:
“One night in mid to late May 2001 I received a telephone called from Charlotte. She was sobbing very hard on the phone. I said to her words to the effect of “Charlotte, what’s wrong, why are you crying?” After a few minutes she seemed to calm down but she continued to sob and said words to the effect of “There is this man at work, whose name is Sharif, he is a chef. He has been making indecent comments to me and has also been doing things to me like touching me and pressing himself into me. One time he came behind me and pinned me in a corner. He says horrible and sleazy things to me. I am really scared of him.”
And at paragraph 12 she says:
“… She responded in words to the effect of “He touches me in a way that makes me feel really uncomfortable and says thinks like he would rather have me from behind. He has also said that he wants to come to see me at the Embassy Nightclub and I am scared that he might come there and follow me home late at night.”
The balance of Ms Marion Bishop’s affidavit concerns her observation of the affect of these alleged incidents upon the applicant, which are also dealt with in a second affidavit of Ms Bishop filed on 1 December 2003. That affidavit goes into some considerable detail about her attempts to return to work after leaving the Club, her fear of working in the hospitality industry, in particular where she might be subjected to unwanted sexual conduct, and her gradual recovery of her position with the assistance of an extremely supportive employer in the Palace Hotel at Coogee. Ms Bishop now runs her own public relations firm connected with the Palace Hotel which appears to be successful. She has had psychiatric assistance in recovering from her problems and is at last beginning to recover although she believes that she is not the same person that she was before the events at the Club.
Mr Weiss deposed that he had met Ms Bishop in April 2001 and a few weeks thereafter she told him that she was unhappy at work at the Club because:
“I am being hassled at work by this guy called Sharif. He is making lots of sleazy comments towards me. He is also touching me. He is making me feel very uncomfortable. I am quite scared of him, I don’t know what to do.”
At the beginning of May Mr Weiss went to the Club to pick up Ms Bishop. She asked him to come in so that she could introduce him around as her boyfriend and Mr Takla could see that she had a boyfriend and perhaps not continue his activities towards her.
Mr Weiss also deposed to the fact that on the night that Ms Bishop told him that she had informed Mr Tzenos of her complaints against Mr Sharif she was very sick and he needed to take her to the local medical centre for medication. He also described the unhappiness that came over Ms Bishop after she had left her job and indicated that her mood did not improve until she started working at the Palace Hotel in March 2002.
Medical evidence
The medical evidence produced by the applicant consisted of two reports from Dr Carolyn Quadrio, Psychiatrist dated 4 October 2001 and 11 December 2003 and a report of Dr Catherine O’Hearn, a GP dated 14 November 2003. Dr O’Hearn noted that she saw the applicant on 6 July 2001 in emotional distress alleging sexual harassment in her previous employment and was referred to a Psychiatrist.
Dr Quadrio provided a detailed medico-legal assessment of the applicant, her opinion and conclusions state:
“As a result of the trauma of this experience of harassment, Ms Bishop is suffering a typical post traumatic stress disorder. She is depressed and irritable and sleepless. She is intensely preoccupied with the memory of her experiences and unable to distract herself from these preoccupations. They keep her awake at night. She is less able to focus and concentrate and less able to tolerate interactions with customers at work. She is tense and fearful and hypervigilant. She has quite marked symptoms of physiological and psychological arousal with anxiety and gastric and bowel upsets and this has led to weight loss. She has tactile flashbacks – feeling the man’s hands on her. Ms Bishop is now avoidant of the situation where she experienced the harassment and is unable to continue working in hospitality – a field in which she has worked in since she was aged fourteen. The experience has had such an impact on her that she has had to change the nature of her work.
Ms Bishop appears to have been a reasonably well adjusted woman before the recent events at her previous place of employment. Her current disability seems to be entirely related to the discrimination at work – both to the fact that Sharif sexually harassed her and compounded by the apparent inaction of those in charge.”
These comments were made in October 2001 and in her report of 11 December 2003 her opinions and conclusions are:
“Diagnosis – chronic post traumatic stress disorder.
Ms Bishop continues to suffer from chronic post traumatic stress disorder. She is less depressed and sleeping better but remains irritable, vigilant, suspicious, fearful and insecure. She remains quite preoccupied with the memory of her experiences. She continues to experience flashbacks. She continues to experience physiological reactivity in the form of gastric upsets. Her sexual feelings have been affected so that she reacts negatively in all but the safe situation with her partner. …
Ms Bishop is showing some improvement, partly due to her own efforts to rehabilitate herself and most notably because she has moved into a work situation where she is in charge rather than being stood over by others. She has also benefited from the treatment with Dr Hopper. There are factors that have contributed to her improvement and these are fortuitous rather than of her own making: she is in a very supportive relationship with her current boyfriend and management at her current workplace has been very positive and supportive. As a consequence Ms Bishop is beginning to make a promising recovery.
However, Ms Bishop is still significantly impaired and still manifests significant symptoms of Post Traumatic Stress Disorder.
In her prognosis Dr Quadrio says:
“Ms Bishop will need to continue with her current psychiatric treatment. In my opinion she would need at least 12 months of weekly sessions.
Ultimately I think Ms Bishop has the capacity to make a good recovery although it is likely that her career path has been permanently altered by these events.”
The reference to “career path” is a reference to Ms Bishop’s previous ambitions to become an actor which she believes she no longer has the confidence to continue with.
Findings
In Horman v Distribution Group Ltd [2002] FCA 219 Justice Emmett approved of the following statement concerning the acceptance of evidence in cases such as this.
“33 Tribunals and Courts of Law are frequently asked to decide which of two versions of a series of facts they accept. It is often a very difficult task particularly where both witnesses are credible. The decisions are made with the benefit of a number of factors. Perhaps the most important is each witnesses’ demeanour in the witness box, his or her method of giving the evidence, the way questions are answered in cross-examination, the willingness to acknowledge the possibility of error and changes in recollection due to the passage of time. Other matters that would be looked at include the interest that the witness might have in the outcome of the proceedings and the inherent likeliness or unlikeliness of the evidence when considered with the background of the known facts.
Finally, most Tribunals or Courts seek to find some form of corroboration from other evidence of whatever nature. The decision that is made is not always one between believing one witness and not believing another or holding that one witness is telling the truth and the other is lying. More often than not the decision comes down to the preference of one recollection over another. Recollection is notoriously unreliable.”
It is an approach which I propose to take in these proceedings. The applicant sought to utilise s.64(3) Evidence Act 1994 which relevantly provides an exception to the hearsay rule for “first hand” hearsay in civil proceedings where the person who made the previous representation is available to give evidence about the asserted fact. Sub-section 64(3) provides:
“If the person who made the representation has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by:
(a) that person; or
(a) a person who saw, heard or otherwise perceived the representation being made;
if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation.”
Ms Bishop argues that I should utilise this sub-section to find that the actions about which she complained to her mother and Mr Weiss actually occurred and that their evidence should not be limited to being corroboration that she was complaining of something having occurred. Evidence of this nature was considered in the context of a sexual harassment claim by Branson J in Leslie v Graham [2002] FCA 32 at [51] – [55]. She also deals with the definition of the word “fresh” which was considered by the High Court in Graham v The Queen (1998) 195 CLR 606. I am satisfied that the events which were relayed both to Mrs Bishop and to Mr Weiss were contemporaneous enough to be considered “recent” or “immediate”. In R v Adam AKAOdishou (1999) 47 NSWLR 267 at [281-2] the definition of ‘fresh’ was given further consideration and a wider temporal scope by the New South Wales Court of Criminal Appeal. The difficulty which I face in this case is a consideration of whether the evidence should be admitted in that way or be excluded under s 135 Evidence Act as being unfairly prejudicial to the respondent. Evidence is not unfairly prejudicial to a party merely because it tends to damage the case of a party or support the case of an opponent Papakosmas v The Queen (1999) 196 CLR 297 at [91, 98] per McHugh J. In that case His Honour approved of the statement of the New South Wales Court of Criminal Appeal in R v BD (1997) 94 A CRIM R131 that
“[Evidence] may be unfairly prejudicial to a party if there is a real risk that the evidence will be misused by the jury in some unfair way.”
In this case the respondent, although he was not represented, had the opportunity to cross examine both the alleged maker of the statement (the applicant) and the person who reported it. He did cross-examine the applicant. It is also important to note that he did not deny some of the actions which were the subject of the report. He merely put a different complexion upon them. In respect of those that he did deny he said plainly that they just did not occur. I believe that in this case I am entitled to accept the evidence of Mrs Bishop and Mr Weiss as probative of the events reported.
With these matters in mind I would make the following findings.
I accept Ms Bishop as a witness of truth. I believe that the incidents which she has described in her evidence took place. I do not accept Mr Takla’s denials relating to the physical incidents nor his excuse about brushing past Ms Bishop in a rush to get to his post. In these cases there is usually a reference made to proof being required to the standard discussed in Briginshaw v Briginshaw (1938) 60 CLR 336. In Graham supra, Justice Branson took her cue from s.140 Evidence Act which required the court to take into account:
“(c) The gravity of the matters alleged.”
This is what I have done in preferring the evidence of Ms Bishop to that of Mr Takla in relation to these incidents. Mr Takla was obviously disadvantaged by appearing on his own behalf but his evidence in relation to the timing of his leaving the employ of the Club was confused and unsatisfactory. I was not impressed with his excuse for the use of the word “octopussy” or the references to “table sex”. I also note the strong corroborative evidence of the complaint to the Doctor in July 2001 noting that Ms Bishop did not make her complaint to HREOC until May 2002 so that it could not be said that the first was done to support the second.
Although I have accepted the evidence of Ms Bishop over that of Mr Takla this does not mean that all the matters she complains of constitute sexual harassment within the meaning of s.28A. The unwelcome conduct of a sexual nature must occur in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated. I am not satisfied that these circumstances existed in relation to the conversation and actions concerning the horseriding activity, the video tape of the television interview or the
e-mail request. They took place early in Ms Bishop’s employment. Any concerns she felt would appear to have been caused by warnings about what might occur from third parties who did not give evidence.
I take a different view in relation to the conversation concerning visiting Ms Bishop at the Embassy Club because I accept Ms Bishop’s evidence that Mr Takla said words to the effect that he would come there alone and a reasonable person may well have anticipated that she might be intimidated by this. I find that the other matters complained of, the remarks, the brushing past and the actual physical contact all constituted unwelcome conduct of a sexual nature which a reasonable person would have anticipated that the person harassed would be offended, humiliated or intimidated by.
As regards the medical evidence I must accept the uncontradicted evidence of Dr Quadrio that the applicant is suffering from the effects of Post Traumatic Stress Disorder. I accept that this affected her employability for a period prior to her employment with the Palace Hotel at Coogee and I accept that she will need some continuing medical assistance. On the other hand, in her evidence to me and in the later report of Dr Quadrio, it is clear that the applicant is improving and has come a very long way since the initial depression caused by the incidents in question.
Relief
The applicant claims damages made up as follows:
DETAILS OF COMPENSATION CLAIMED
1. General damages - $20,000
2.(a) Loss of income due to missed shifts in May 2001 - $347 (affidavit of Charlotte Bishop sworn 1 December 2003, par 45).
(b)Loss of income 31 May 2001 to 17 August 2001 - $3,442 (affidavit of Charlotte Bishop sworn 1 December 2003, par 46).
(c)Loss of income mid-December 2001 to 31 January 2002 - $2,508 (affidavit of Charlotte Bishop sworn 1 December 2003, par 47).
Sub-total: $6,297
3.(a) Consultations with Dr Hopper, already incurred as at 1.12.03 - $420 (affidavit of Charlotte Bishop sworn 1 December 2003, par 53).
(b)Further consultations with Dr Hopper, at 2 per month for 9 months - $1,080 (affidavit of Charlotte Bishop sworn 1 December 2003, par 53; report of Dr Quadrio dated 11 December 2003, p 7).
(c)Medication, Cepramil - $138 (affidavit of Charlotte Bishop sworn 1 December 2003, par 54).
Sub-total $1,638
TOTAL:$27,935
The applicant supports her claim for general damages by reference to the amount of $16,000 awarded in Leslie v Graham supra, the award of $20,000.00 in Hillroy v Angelo 181 ACR 57 and the award of $54,488.57 made in Evans v NCA [2003] FMCA 375 (although this was not a sexual harassment case). I think the court should be cautious before descending into the minutiae of these claims so as to make one act of sexual harassment worth more than another. The cumulative effect of all of these acts was serious. I believe that to the greatest extent possible damages should reflect the medical evidence of aetiology and prognosis. I believe that the figure of $20,000.00 would constitute a reasonable verdict on that basis and would accept the applicant’s calculation in this regard. I further accept the figures for loss of income and continuing medical expenses which are supported by evidence. The applicant seeks interest on the amount claimed in regard to the general damages from 30 May 2001 and in regard to the loss of income from the last day of the two periods mentioned in 2(b) and 2(c). I would not make an award of interest in respect of the medical expenses because whilst some have been incurred others are to be incurred. I have calculated the interest as follows. On general damages $5,210, on loss of income 31 May 2001 to 17 August 2001 $70.20, on loss of income 15 December 2001 to 31 January 2002 $31.20. Interest has been calculated at the rate of 9.5%.
Having made these calculations I opened the confidential affidavit of Lynette Anne Payne from which I note that pursuant to the settlement the applicant received the sum of $16,500.00 of which $7,640.00 represents her costs. I think the most appropriate way of dealing with this matter consistent with the arrangements made is to deduct $7,640.00 from $16,500.00 leaving a total of $8,860.00. That sum should be deducted from the total of the damages and interest which I have awarded leaving an amount of $24,386.40 which I will order to be paid by the first respondent. I will also order that the first respondent pay the applicant’s costs in respect of the proceedings against him. In this regard I note that the affidavit of Lynette Anne Payne sets out in some detail in paragraph 6 how the $7,640.00 is calculated. In making an assessment of costs pursuant to Schedule 1 of the Federal Magistrates Court Rules the applicant should taken into account work already paid for. I certify this is a case which was suitable for an advocacy loading.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
ANNEXURE
REASONS FOR REFUSING ADJOURNMENT
These proceedings were commenced on 3 September 2003. The applicant sought relief against the first respondent who she claims was the instigator of the sexual discrimination in respect of which the proceedings are brought and the second and third respondents who were respectively her employer and the principal of her employer. In accordance with the usual practice of this court a first hearing date was given at which orders were made. The first respondent did not attend that hearing which took place on 1 October 2003. On 24 November 2003 the matter was further listed in this court and further short minutes of order were made. The first respondent did not appear then either. The proceedings went to mediation. The first respondent did not appear at the mediation. The mediation was otherwise successful but the case against the first respondent which had been set down for hearing for three days remained in the list.
This morning, the first day of the hearing, Mr Niven appeared on behalf of the first respondent and sought an adjournment. He told the court that he had received funding from the Legal Aid Commission to make this application so that if it was successful the first respondent could apply for a grant of legal aid in respect of representation at the adjourned proceedings. There is no indication at the present time as to whether or not such a grant would be made.
The applicant has acted responsibly throughout this matter and has kept the first respondent informed of every hearing before this court, has provided the first respondent with every document filed and also gave to the first respondent an indication of the result of the mediation. An affidavit by Lynette Anne Payne was filed setting out those matters.
Mr Moorhouse who appears on behalf of the applicant informed me today that his client wished the matter to proceed. He informed me that one of the witnesses, the applicant's mother, is in court but has come down here from Queensland for the hearing and he reminded me that the applicant has already deposed to the fact that these proceedings have caused his client some considerable distress and anxiety. The nature of the proceedings is such that it is not difficult for a court to understand how difficult it is for an applicant and I believe that the representations made by Mr Moorhouse must be given considerable weight.
Although the general rule is that adjournments should be granted where there is good reason given for them and any disadvantage to a party can be remedied in costs, there is also the consideration of the public interest in the efficient administration of justice. Mr Niven has told me that his client is currently unemployed and bankrupt. This would tend to indicate that the applicant would not receive any reimbursement for an order for costs that I might make if an adjournment was granted. Mr Niven has indicated that there may be some provisions in the Legal Aid Act which would be of assistance. I'm not sure whether he is referring to payment from the legal aid fund to the legal aid fund (the applicant being legally aided), but the fact is that if an adjournment is granted the coffers of that fund will be depleted in one way or another. Not only that, three days set aside for the hearing will have been wasted and a new hearing date will have to be granted some months away which will be to the disadvantage of the applicant. Finally, there is no evidence that the applicant will receive representation.
In the circumstances I do not think it is an appropriate to grant an adjournment in this matter. The first respondent has had more than enough time and more than enough opportunity to deal with the proceedings which are currently being brought against him. I would order that the matter proceed.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Raphael FM
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