Britt v Harris
[2001] VSC 3
•23 January 2001
| SUPREME COURT OF VICTORIA | |
| PRACTICE COURT | Not Restricted |
In the Matter of S.148 of the Victorian Civil
and Administrative Tribunal Act 1998.
No. 6117 of 2000
| INES BRITT | Plaintiff |
| v. | |
| MAURICE HARRIS | Defendant |
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JUDGE: | BEACH, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 7 DECEMBER 2000 | |
DATE OF JUDGMENT: | 23 JANUARY 2001 | |
CASE MAY BE CITED AS: | BRITT v HARRIS | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 3 | |
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CATCHWORDS: Appeal from order of master dismissing application for leave to appeal from decision of Victorian Civil and Administrative Tribunal – No arguable error of law on part of Tribunal – Appeal dismissed.
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr H Borenstein and Mr P. Mellas | Harwood Andrews Lawyers |
| For the Defendant | Mr. I. Fehring | Saines and Partners |
HIS HONOUR:
This is an appeal from an order of a Master of the court made on 14 November 2000 whereby the Master dismissed the plaintiff's application for leave to appeal to a judge of the trial division of the court from an order of the Victorian Civil Administrative Appeals Tribunal made on 19 June 2000.
In late 1993 the plaintiff obtained employment with Child and Family Services Ballarat Inc. or CAFS as it is now known, and remained in the employ of that organisation until she tendered her resignation on 30 September 1999 effective from 11 October 1999.
Over the period of time relevant to this appeal the plaintiff's supervisor was the defendant Maurice Harris. At the time of the hearing before the Tribunal the plaintiff was aged 31 and the defendant was aged 62.
On 26 November 1998 the plaintiff lodged a complaint with the Equal Opportunity Commission alleging sexual harassment in the area of employment by the defendant and victimisation by CAFS and a number of co-employees named, Zibell, Delahunty and Boal.
On 9 September 1999 the Commission referred the complaints to the Tribunal.
By the time the plaintiff's complaints came on for hearing before the Tribunal the plaintiff had compromised all her complaints with the exception of those relating to the defendant.
The hearing commenced on 29th May 2000. It extended over 8 days concluding on 7th June.
The Tribunal found that the plaintiff's complaints of sexual harassment had been proven in part and on 19 June ordered the defendant to pay the plaintiff the sum of $7500. The Tribunal further ordered each party "to bear it's own costs".
On 17 July 2000 the plaintiff filed an originating motion in the court seeking leave to appeal.
On 14th November the Master dismissed the application.
In her draft Notice of Appeal, which is exhibit JGR1, to the affidavit of James Gordon Rutherford sworn 2nd November 2000, the plaintiff sets out 14 questions arising from the appeal which she seeks to have the court answer.
However, at the outset of the hearing of the appeal, counsel for the plaintiff abandoned all but questions 1 and 8. Those questions read: -
1.Did the Tribunal err in law in finding that the appellant in respect to incidents 1 and 2 was not sexually harassed within the meaning of s. 20 (b)(i) & (ii) of the Equal Opportunity Act 1984
2.Did the Tribunal err in law in failing to give proper and adequate reasons, or any reasons, when making an award of compensation to the appellant.
The plaintiff's particulars of complaints 1 and 2 are set out at pages 10/11 of the Tribunal's quite lengthy reasons. They read: -
Incidents 1 and 2.
31.These are described in Mrs Britt's particulars of complaint and reiterated in her statement, as follows:
"12.1In mid to late 1995 the applicant was employed by the fifth respondent as a supervisor of a Family Group Homes Program. During an afternoon in mid to late 1995 the first respondent entered the applicant's office and sat down.
12.2The first respondent began to tell the applicant how good he thought she was as a worker and what a wonderful person she was for someone so young. He informed the applicant that she was incredibly mature and that she had a wonderful future ahead of her.
12.3He then stated that he had a dream about her on the previous night. He told her that it was a mystical dream about three women, one of whom had dark hair and he believed that woman to be the applicant. He stated how good this dream made him feel and how incredibly spiritual it was. The first respondent then stated that his dream was not only spiritual but was also incredibly erotic.
12.4The first respondent then asked the applicant if his comments made her feel uncomfortable. She stated that they did and that the best thing would be for the first respondent to forget it and act as though he had never told her of his dream. The first respondent agreed and then left the applicant's office.
12.5On the following morning the first respondent asked the applicant if she was feeling uncomfortable. She told him that she was, particularly as the first respondent had brought up the subject of the contents of his dream again.
12.6At that time the applicant told the first respondent of an experience she had at university when a female friend's father had made unwelcome advances towards her. She told the first respondent that these advances made her feel uncomfortable and horrible, to the extent that she stopped her friendship with the same female friend in order to avoid any further contact with the female friend's father.
12.7The applicant told the first respondent that she never wanted to feel that way again and was not interested in a 'father figure type' relationship."
The findings of the Tribunal which are criticised by the plaintiff are those set out in paragraph 35, 36 and 37 of its reasons. Those paragraphs read:-
35.I accept Mrs Britt's recollection of the timing to be more accurate. She places it at a time when her job changed. Mr Harris' evidence as to the timing was rather vague. It was a very odd matter to raise and very inappropriate, particularly with a much younger female employee in the organisation and one would not be surprised if it "stuck in one's mind". The use of the word "erotic" has obvious sexual connotations. I have difficulty accepting Mr Harris' explanation given in evidence in chief that "erotic" meant something like self-fulfilment and that Mrs Britt knew what he meant when he used that word. That she had such an understanding was not put to her in cross-examination.
36.As I find this occurred late in 1995, the provisions of the Equal Opportunity Act 1984 apply and I would need to find that Mrs Britt was harassed with sexual advances or importuned or harassed with persistent sexual suggestions or innuendo.
37.In my view, even accepting that Mr Harris had raised the matter again the following day, on Mrs Britt's evidence that appeared to be the end of matters. She herself states that from December 1995 to December 1997 a good working relationship developed. In those circumstances, I am not satisfied that the conduct in late 1995 amounted to harassment as defined at the time.
The Tribunal awarded the plaintiff compensation in the sum of $7500.
In determining that that was the appropriate sum to award the plaintiff the Tribunal said: -
81.Having heard the evidence and submissions and having found a number of the complaints of sexual harassment proven, s.136 of the Act enables me to make any one or more of a number of orders. Section 136(ii) in particular enables me to make:
"(ii)an order that the respondent pay to the complainant within a specified period an amount the Tribunal thinks fit to compensate the complainant for loss, damage or injury suffered in consequence of the contravention."
82.Mrs Britt's claim for compensation is put under several heads. They are for loss of income, expenses related to anorexia; expenses due to moving from Ballarat; increased child care expenses; and loss of income from Mr Britt's coaching position. She further seeks in her particulars a written apology, compensation for pain and suffering, compensation for damage to her reputation, compensation for loss of employment and costs.
83.Mrs Britt has settled with the other respondents and that settlement is relevant to the orders I make. The terms of settlement have been filed as a confidential exhibit, and its details are known to the parties and their legal representatives.
84.The evidence about the injuries and stress she has suffered comprised her own evidence, her family's evidence and the report and evidence of her treating psychiatrist Dr Senadipathy and medico-legal report of Dr Shirley Prager, psychiatrist. There was also much material filed in relation to the income aspects.
85.The sexual harassment incidents did not loom large in either doctor's reports. Clearly, overwhelmingly the rejection of Mrs Britt by co-workers on her return to the workplace from 31 August 1998 has been the significant triggering factor in the re-emergence of her anorexia nervosa.
86.Whilst there may have been some signs of problems before the September presentations, they are simply not comparable. As Dr Senadipathy relates it, her episodes of anorexia nervosa have been prompted by incidents of feeling rejected. Significantly, Dr Prager in her report, prepared at the request of the other respondents, answering the question "What is the cause of the medical condition she is now suffering?" said that "the cause is multifactorial, and I would give substantial weight to the staff rejection factors and the family factors described above."
87.It is difficult then to see to what extent Mr Harris, who had left the workplace, is responsible for what happened after she returned to work.
88.The term "loss, damage or injury" is a wide expression and includes amongst other things, the hurt humiliation and loss of dignity suffered. Taking into account that I have found she has been subjected to sexual harassment by Mr Harris and what followed on her return to the work place, and the settlement with the other respondents, I find that Mrs Britt is entitled to compensation from Mr Harris in the sum of $7500.
The relevance of the settlement of the plaintiff's claim with the other respondents was this.
By virtue of the provision of Sec 102 of the Equal Opportunity Act, the defendant's employer CAFS was vicariously liable for the behaviour of the defendant. If, therefore, the plaintiff was successful in establishing that the defendant had been guilty of sexual harassment as she was, there was always the potential for a claim being made by her against CAFS arising from those acts of harassment.
When the plaintiff settled her claim against CAFS she also settled any potential claim she had against it arising from the behaviour of the defendant. It was necessary for the Tribunal therefore, in arriving at the appropriate award of compensation to be made to the plaintiff, to know the figure that the plaintiff was to receive from the other respondents including CAFS, to ensure that she was not "double dipping".
As the settlement figure is confidential to the parties it would be quite inappropriate for me to disclose it in my reasons for judgment. I think I am able to say however that it was not an insignificant amount.
It has long been the practice in this Court and the High Court, not to give reasons for granting leave to appeal in a particular case or for refusing leave to appeal. The matter was adverted to by Fullagar, J. in Leighton Contractors Pty. Ltd. v. Kilpatrick Green Pty. Ltd. (1992) 2 V.R. 505.
Although that was a case in which the Full Court was determining an appeal from the decision of a single Judge of the Court whereby the Judge had refused leave to a party to appeal from an interim award of an arbitrator, his Honour's observations are equally application to an appeal from the decision of a Master of the Court refusing a party leave to appeal from a decision of the Tribunal. At p. 514 Fullagar, J. said:
"I have spoken above of a yielding to temptation, and it is of course a natural and instinctive wish of judges to give reasons for their decisions, so that their decisions may be seen to be the rational dictate of the law rather than the result of their own individual opinions or prejudices. But in this particular field, paradoxically, the giving of reasons may be seen to be decidedly inimical, in the long run, to the doing of justice between the parties, and especially so in modern times when every utterance of a judge is likely to be reported, or misreported in some book or self-styled law report. If reasons are given, they will be seized upon as the laying down and application of a principle, rather than merely the application, to all the circumstances of the individual case, of a wide judicial discretion. After the first half dozen reported decisions the discretion will begin to take on limitations and boundaries, and in the end there will be no discretion but only a complicated set of hard and fast rules of law manufactured entirely by the judiciary, although with the assistance of the reporters and commentators. Compare Mallot v. Mallet (1984) 156 CLR 605 at pp. 608-609, per Gibbs CJ.
In Antaios Compania Naviera S.A. v. Salen Rederierna A.B. (The Antaios) [1985] 1 AC 191 Lord Diplock, with whom the other Law Lords agreed, re-affirmed the guidelines given in The Nema, but he also added that a judge should not give reasons for granting or refusing leave to appeal from the arbitrator to the court, and with this addendum I would respectfully agree for reasons adumbrated above, although the addendum itself cannot be viewed as binding. I understand that it has been the general practice in Victoria not to give reasons for refusing leave to appeal, but if this is not the general practice then it ought to be: see eg. Karenlee [1988] VR 614 at p.620. It is, I think, the more usual practice of our Full Court itself not to give reasons for refusing special leave to appeal to the High Court."
Of course there may be cases in which it is appropriate for the Court to give reasons for granting leave to appeal, for example where a Judge directs that the appeal be heard instanter and allowed. In such cases it is appropriate for the judge to state his reasons for granting leave as well as those for allowing the appeal. See for example Beneys and Another v. Delafotis and Another (No.1) (1996) 2 V.R. 695. See also Rabel v Eastern Energy Pty. Ltd. (1997) 3. V.R. 45 at p.50.
But that is not the situation in the present case.
I have considered the findings of the Tribunal in respect of incidents 1 and 2 and I am not persuaded that it is arguable that the Tribunal made an error of law in the matter.
Clearly what was said by the plaintiff on the two occasions in question could not be described as persistent sexual suggestions or innuendo.
On the first occasion the defendant did no more than tell the plaintiff of his dream and that it was "not only spiritual but was also incredibly erotic." On the following morning he simply asked the plaintiff if she was feeling uncomfortable and when she replied that she was, that was the end of the matter.
"Persistent" when used in Section 20 (1) (b) (ii) of the Equal Opportunity Act 1984 (that being the relevant Act to the plaintiff's complaint) must surely mean continuing obstinately, enduring or constantly repeated. One could not make any of those observations concerning the defendants conduct.
Could the conduct complained of be construed as a sexual advance?
Whilst I agree that it was totally inappropriate, in my opinion it is debatable whether it amounted to a sexual advance. But even if it did the Tribunal found as a fact that it did not amount to harassment and that is a finding that this court would not interfere with.
I turn then to the Tribunals reasons for its award of damages.
There is no general principle that a court's failure to give reasons is an error of law which vitiates the court's decision. See Hockey v Yelland (1984) 157 C.L.R. 124 at p. 143 per Wilson J. and the as yet unreported decision of the Court of Appeal of this court in Perkins v County Court of Victoria and Others at p. 36 for Buchanan J.A. (27 September 2000).
In my opinion the reasons of the Tribunal in the present case are sufficient to enable an appellate court to consider and determine whether or not the Tribunal's award was erroneous and no more was required of it.
The appeal from the order of the Master of 14 November 2000 will be dismissed with costs to be taxed and paid by the plaintiff.
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CERTIFICATE
I certify that this and the 7 preceding pages are a true copy of the reasons for judgment of Beach, J. of the Supreme Court of Victoria delivered on 23 January 2001.
DATED this 23rd day of January 2001.
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