Coleman v Bentley

[2002] NSWADT 87

CITATION:	Coleman -v- Bentley [2002] NSWADT 87
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Wendy Coleman RESPONDENT Wayne Bentley
FILE NUMBER:	011040
HEARING DATES:	22/10/2001, 05/11/2001
SUBMISSIONS CLOSED:	03/14/2002
DATE OF DECISION:	05/28/2002
BEFORE:	Loukas C - Judicial Member; Clayton S - Member; Strickland J - Member
APPLICATION:	Sexual Harassment - In workplace
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	O’Callaghan v Loder (No 2) [1983] 3 NSWLR 89 Hall v A & A Sheiban Pty Ltd (1989) 85 ALR 503 Spencer v Dowling (1996) EOC [92-851
REPRESENTATION:	APPLICANT C Burge, barrister RESPONDENT No Appearance
ORDERS:	1. Complaint substantiated; 2. The respondent pay the applicant within 21 days of the date of this decision the amount of $10,352.40; 3. No order as to costs

Background
1 On 23 January 1998 the Anti-Discrimination Board received a complaint from Ms Wendy Coleman alleging discrimination on the grounds of sexual harassment in employment.
2 Ms Coleman named Meat King Butchers and Mr Wayne Bentley as respondents in this matter. The Board wrote to both respondents. The Accountants for (W & S) The Meat King Butchers indicated that the Directors of the Company had entered into a Deed of Company arrangement in July 1998 and the assets of the Company had been sold to meet the arrangements with creditors. On 5 June 2000 Ms Coleman’s solicitors notified the Board that she did not wish to proceed with the complaint against Meat King Butchers.

No Response From Respondent
3 The Board wrote to Mr Bentley on the following dates; with the following responses:

19 August 1999 Letter returned to Board marked ‘no such street number’
22 November 1999 Letter returned to Board marked ‘unknown at this address’
9 June 2000 Letter returned to Board marked ‘refused’
9 April 2001 Letter posted to Mr Bentley on 10 April 2001. Australia Post has confirmed that Mr Bentley signed for receipt of the letter on 11 April 2001.


As at the date of referral to the Tribunal the Board had not received a response from Mr Bentley.



4 On 7 June 2001 the complaint was referred to the Equal Opportunity Division of the Administrative Decisions Tribunal under s94(1) of the Anti-Discrimination Act.

5 On 10 September the Tribunal sent a letter to Mr Bentley informing him of the hearing date of 22 October 2001 by registered post. There was no response. (See exhibit 1).

6 Further, on 30 October 2001 Mr Jeffrey Edwards a licensed Commercial Agent delivered a letter to Mr Bentley at the same address in Narellan Vale informing him of the adjourned date of 5 November 2001. On 31 October 2001 Mr Edwards confirmed with a neighbour that Mr Bentley lives at that address.. (See Exhibit 6, 2 affidavits).

Applicant’s Case
7 The applicant Ms Coleman, gave evidence. Ms Coleman’s statement to police forms part of Exhibit 4. (Report from the President of the Anti-Discrimination Board).

8 Ms Coleman gave evidence broadly in conformity with her statement to police of 7 November 1997.

9 In September 1996 Ms Coleman began work at the Meat King Butchers in Liverpool as a cashier. At that time Mr Bentley was a butcher also employed there. On her first day of work she noticed pornographic material on the staff table.

10 The respondent, Mr Bentley became the assistant manager in 1997. From this time the respondent, Mr Bentley began “passing comments to me such as “If I leave my wife, would you and I ever have a chance” and “when are you going to go out with me”. On each occasion I told him I wasn’t interest (sic)”.

11 On another occasion the respondent made a reference to Ms Coleman wearing “white lacy knickers”. Thereafter Ms Coleman wore leggings under her uniform.

12 Subsequently the respondent began attending the complainant’s house uninvited and intoxicated. On each occasion his attentions were rebuffed.

13 In another subsequent incident at the workplace:

“On one occasion I could see Wayne (Mr Bentley) out of the corner of my eye. Because he used to grab me and touch me on the bottom I thought that is what he was going to do so I swung my arm behind me to block his hand from touching me on the bottom and hit his butcher’s knife with my hand causing a large laceration to my right index finger. Wayne said “I was only going to jab you in the bum with it”. [Statement to police - Exhibit 4].


14 On 24 September 1997 the respondent Mr Bentley grabbed the applicant Ms Coleman and sucked her neck. Ms Coleman attempted to push him away and fell over a garbage bin and fell to the ground. Then:
“I got up and went and had a look in the mirror to see what he had done and I turned around to Wayne (Mr Bentley) and said “you’re a pig”. He said to me “look if you had let me hang on a little bit longer it would have been a real humdinger“. I then walked out of the shop.” [Statement to police - Exhibit 4].


15 On 1 October 1997 at the workplace a female was enquiring of Mr Bentley in relation to employment and the availability of work and within hearing of Ms Coleman Mr Bentley said “Do you take sexual harassment and discrimination?”.

16 There was an incident involving Ms Coleman’s son on the 9 October 1997.

17 On 21 October 1997 Mr Bentley, the respondent informed the applicant, Ms Coleman she was no longer required.

18 Additionally Ms Coleman gave evidence that she did not feel she could work as she did not feel safe [transcript 22 October 2001 page 9]. Ms Coleman gave evidence that she had been seeing Dr Tsang, a consultant psychiatrist, receiving counselling and taking medication. [(Exhibit 2) record of medication], (Exhibit 5 memorandum of fees).

19 Ms Coleman also gave evidence that she had completed a bar course and worked one night in a club at Fairfield in Sydney, however, she did not feel she could continue in that employment as it involved men and alcohol [transcript 22 October 2001 page 10] and would prefer to work in a female environment such as a clothes shop. [Transcript 22 October 2001 page 15].

20 Exhibit 3 contains various documents including inter alia:

1. a report from Dr Tsang, consultant psychiatrist.
2. a statement by Ms Thomas.
3. two reports from Dr Cherry.
4. a letter from the New South Wales Working Women’s Centre to the manager of Meat King.
5. copy of a recognizance for Mr Bentley in relation to assault on Ms Coleman.
6. Complaint and summons - apprehended domestic/personal violence relating to Mr Bentley and Ms Coleman's son
7. Apprehended Violence Interim Order relating to Mr Bentley and Ms Coleman’s son.
8. Subpoena to Ms Coleman.
9. Letter from Ms Rebekah Lucas, sexual assault counsellor.
10. Letter from Ms Anne Smith, Anglicare.
11. Bail decision relating to Mr Bentley.


21 A statement by Ms Leslie Kathleen Thomas was also tendered (Exhibit 7). Ms Thomas indicates in the statement that towards the end of September 1997 she observed
“…What appeared to be a love bite on the right hand side of her neck, the approximate size of a 50 cent piece and a purple colour.
Wendy also showed me a bruise on the left side of her upper leg. The bruise was about 10 cm in diameter and a dark purple or black colour with small bruises around it. Whilst Wendy was telling me what happened she was very distressed and upset”.


Complainant’s Submissions
22 The complainant’s legal representative submitted before the tribunal and in written submissions on quantum that:
· The Applicant, Ms Coleman presented as a truthful and compelling witness.
· The conduct of the respondent had a deleterious effect on the applicant’s ability “to lead an otherwise normal life”.
· The respondent’s behaviour led to Ms Coleman the applicant seeking medical treatment and moving house.
· Ms Coleman, the applicant, “has had to move house, has suffered anxiety and an adjustment disorder, humiliation in the work place, restricted work opportunities and a loss of self esteem”.
· “Dr Tsang is able to state with a degree of certainty that the applicant’s adjustment disorder was initially caused by the conduct at issue in these proceedings”. [Applicant’s written submissions on quantum].
Additionally, the applicant filed written submissions on costs along with an affidavit from Ms Coleman on economic loss. [Exhibit 8].


Relevant Legal Principles
23 Section 22A of the Anti-Discrimination Act 1977 (“The Act”) provides for the meaning of “sexual harassment”. It provides that a person sexually harasses another person if:
(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person,
or
(b) the person engages in other unwelcome conduct of a sexual nature in relation to the other person, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.


24 Section 22B of the Act provides (inter alia).

(1) It is unlawful for an employer to sexually harass:
(a) an employee, or
(b) a person who is seeking employment with the employer.
(2) It is unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer.


25 The New South Wales Equal Opportunity Tribunal has observed that “a person is sexually harassed if he or she is subjected to unsolicited and unwelcome sexual conduct by a person who stands in a position of power in relation to him or her”: O’Callaghan v Loder(No 2) [1983] 3 NSWLR 89 at 92. This general concept has been developed into a statutory formula to set the parameters of the behaviour or actions of one person towards another which come within the definition of sexual harassment.

26 As the Federal Court has observed:

Unwelcome sexual conduct may be insensitive, even offensive, but it does not necessarily constitute sexual harassment. The word “harass” implies the instillation of fear or the infliction of damage, as is indicated by the definition of the term in the Macquarie Dictionary :
1. To trouble by repeated attacks, incursions, etc. as in war or hostilities; harry; raid;
2. To disturb persistently; torment, as with troubles, cares, etc. ( Hall v A & A Sheiban Pty Ltd (1989) 85 ALR 503 at 531).
27 The legislative formula for proscribing sexual harassment has been described as:
Only striking at conduct that is an abuse of power or influence which an employer has over the career prospects or working conditions of an employee. The section does not make unlawful, per se, sexual advances made by an employer to an employee; nor does it seek to proscribe the acceptance of such advances by the employee. In other words the sub-section is not intending to change the tide of human affairs. It is the demonstration of the preparedness to use the position of power and influence over the employee which is at the core of the conduct rendered unlawful. ( Spencer v Dowling (1996) EOC [92-851 at 79,325].


Conduct Constituting Sexual Harassment
28 There has been much consideration of the various statutory formula of sexual harassment by tribunals and courts in recent years. Some of the conduct and comments which has been found to be sexual harassment is:
· writing a letter containing a declaration of love and implicit proposal for sexual intimacy including marriage and children: Spencer v Dowling (1996) EOC [92-851],
· intimate pre-employment interview questions about the applicant’s sexual life : Hall v A & A Sheiban Pty Ltd (1989) 85 ALR 503,
· sexually explicit comments written on walls and equipment using her name, lewd magazines and posters with nude and partially clad women throughout the workplace, derogatory sexual comments made to her and about her in her hearing: Hopper v Mount Isa Mines Ltd (1997) EOC [92-879].
· sexually explicit comments about a previous employee during a pre-employment interview, providing money to purchase underwear, requiring lingerie to be bought, referring to her breasts while making a comment about “like to chew on those”, physical touching, offers of massage : B, C and D v Stratton (1997) EOC [92-883],
· pinching her bottom, offers of massage and massaging, comments of sexual nature about himself and her sexual life: Tulk v Moore (1997) EOC [92-870],
· asking personal questions about her sex life, tales of his sex life, touching and licking her leg, rubbing his genital area and making comments about “coming” and making sexually explicit requests on the type of clothing he wanted her to wear: Phillips v Leisure Coast Removals Pty Ltd (1997) EOC [92-899].
Standard Of Proof
29 In determining whether the Applicant has established her case, we have applied the civil standard of proof. However, in doing so, we have taken into account the gravity of the allegations and the serious consequences of any adverse findings to the Respondent. See the remarks of Dixon J (as he then was) in Briginshaw (1938) 60 CLR 336 at pp 361-362. See also O’Callaghan v Loder (1984) EOC 92-024 at pp 75, 511-75, 512.

Finding Of Sexual Harassment
30 The Tribunal finds on the balance of probabilities that the applicant was subjected to acts of sexual harassment in employment by the respondent, within the meaning of the Act. First, the conduct was of a sexual nature, second, was unwelcome, and third, was such that a reasonable person would have anticipated that she would be offended, humiliated or intimidated. The relevant Acts are outlined in paragraphs 10 to 14 of this judgment. The Tribunal accepts the applicant’s evidence in relation to the Acts of sexual harassment by the respondent. The Tribunal finds her to be an honest and credible witness in this regard. Additionally the applicant’s evidence in relation to the neck injury is corroborated by Ms Thomas. (Statement/Exhibit 7) and Ms Adams (Statement/Presidents Report/Exhibit 4).

Relief
31 The applicant seeks damages for economic and non-economic loss. Section 113(1)(i) of the Act permits the Tribunal to order the respondent to pay to the applicant damages not exceeding $40,000 by way of compensation for any loss or damage suffered by reason of the respondent’s conduct.

Applicant’s Submissions On Quantum
32 In written submissions the applicant has sought the following:

· Non-economic loss (pain and suffering) $32,500.00
· Economic Loss (lost wages) $3,000.00
· Medical Expenses $92.40
· Counselling (Past) $110.00
· Moving costs $150.00
· Counselling (Future) $1,000.00
TOTAL : $36,852.40

Non-Economic Loss
33 The applicant seeks an order for general damages. General damages for non-economic loss cover issues such as hurt, humiliation and injury to feelings.

34 In support of the applicant’s contention that she was deeply disturbed by the acts of Mr Bentley, the applicant relies, inter alia, on the uncontested evidence of psychiatrist Dr Tsang and general practitioner Dr Cherry. The report of Dr Tsang contained a different date and description of the incident of 24 September 1997. The tribunal is satisfied nothing turns on this difference.

35 Dr Tsang’s report dated 5 October 2001 states:

“When I first saw Mrs Coleman in June 1999, it was more clear-cut that her Adjustment Disorder was due to the sexual assault she experienced in 1997. Since then, she had experienced many other significant life stresses, including a further assault in July 1999 and miscarriage, a break up in her 7 years relationship, her son’s abduction by her sister and a court case related to her son, and the ill-health of her mother.


I would suggest that the sexual assault Mrs Coleman experienced in 1997 was a major and significant precipitating factor for her Adjustment Disorder. Since then, other events had acted to perpetuate her disorder.”



36 In his report dated 18 March 1998, Dr Cherry states:
“This is to confirm that I have been treating the above in relation to stress-related problems arising from alleged assaults upon her.


This stress is compounded by Miss Coleman’s current place of living which leads her to feel unsafe and anxious due to the ease with which she can be subject to harassment.


It has been necessary to prescribe medication (diazepam) for Miss Coleman to control her anxiety.


I feel it is necessary for Miss Coleman to move from the area in which she currently lives to avoid proximity to potential harassment and to allow her to feel comfortable and secure, thereby reducing her level of anxiety and reliance on medication.”



37 The applicant’s evidence was that she was deeply disturbed following her harassment by Mr Bentley. The tribunal found her to be a credible witness in this regard. Additionally the applicant is corroborated by the medical reports of Dr Tsang and Dr Cherry. [Exhibit 3]. We are satisfied on the balance of probabilities as to non economic loss, arising from the respondent’s conduct towards the applicant.

38 As acknowledged by Wilcox J in Hall v Sheiban (1985) ALR 503 at 543, the task of determining the appropriate level of damages in a case of unlawful discrimination is difficult.

“…damages for such matters as injury to feelings, distress, humiliation and the effect on the claimant’s relationships with other people are not susceptible of mathematical calculation…To ignore such items of damage simply because of the impossibility of demonstrating the correctness of any particular figure would be to visit an injustice upon a complainant by failing to grant relief in respect of a proved item of damage.”


39 We find that the sexual harassment to which the applicant was subjected has caused her to suffer hurt, humiliation and injury to feelings. It has adversely impacted on her psychological well being and enjoyment of life.

40 Taking into account all relevant matters we award damages for non-economic loss of $10,000.

Economic Loss
41 Special damages for economic loss covers the loss of earning capacity where there is a demonstrable discrimination or financial loss. If a complainant leaves her job because of harassment and then is unable to find another job for some period, the damages can cover the period during which she was unemployed. She has a duty to mitigate her damages, that is, actively seek other work to reduce her loss. If she cannot seek other work due to her psychological state arising from the harassment or discrimination, then she must ensure that there is sufficient evidence of the reasons for failure to mitigate.

42 This loss can cover future loss also, where the loss is able to be ascertained by some reasonable mechanism and is causally linked to the discrimination. The future costs of counselling may be included, supported by evidence of the anticipated length of the counselling treatment and the cost per hour: Tenuyl v Delaney (1996) EOC 92-836.

43 The applicant seeks damages for loss of income following the termination of her employment.

44 In the applicant’s statement to police of 7 November 1997 the applicant refers at paragraph 13 to the circumstances of her dismissal in the following terms:

“The next day I was due to work was Wednesday 15 October 1997. I couldn’t go to work as my mother was sick and I was at Silverdale. My friend, however didn’t ring until 4.00 that afternoon. Wayne became Manager on Monday 20 October, 1997 and on Tuesday 21 October 1997 Wayne contacted me at home and informed me that he didn’t need me any more. He said that he didn’t want me any more because I didn’t ring and let him know about the previous Wednesday. I just accepted what he said. There is no point arguing with him, so I just hung up”.


45 In her evidence before the Tribunal the applicant gave the following evidence (22 October 2001 at page 8):.
Q. Now, I want to take you to a short time after that, Ms Coleman, on 9 October 1997. I understand you were working an extra shift that day and your son met you at work that day. Do you recall that?

A. Yes.
Q. Your son told you something I understand at that time following which you approached Mr Bentley; is that so?
A. Yeah, that was about the masturbation.
Q. Is it possible, Ms Coleman, that the incident that you referred to earlier - I withdraw that. Did you then approach Mr Bentley about what your son had told you?
A. Yes.
Q. And when was that?
A. That afternoon I wanted to approach him. My son begged me not to. It was the next day.
Q. And the next day what happened?
A. I got into an argument. Basically I told him if his father found out that there would be a lot of trouble and he was a pig and things like that.
Q. When did you leave work, Ms Coleman?
A. We had an argument that day. After my shift I rang up sick and then he phoned me. He became manager. The next day he phoned me on the Tuesday and told me that he no longer required me. I asked him why and he said that the supervisor of the company, it was his idea and he was just following it through.


There is conflict, therefore, on the applicant’s evidence in relation to the reason for the dismissal. In the statement to police the dismissal is related to the fact that the applicant did not attend work due to her mother’s illness and did not call and notify work. The evidence before the Tribunal is significantly different.



46 On the evidence, therefore, the Tribunal is not satisfied on the balance of probabilities that the applicant’s dismissal was related to the sexual harassment. In these circumstances the Tribunal is not prepared to award economic loss for lost wages.

47 Additionally even had the dismissal been directly related to the sexual harassment, the evidence presented as to quantum was unsatisfactory.

48 In the applicant’s statement to police of 7 November 1997 the following appears at paragraph 3:

“In September 1996 I began work at the Meat King butchers shop in Liverpool Plaza, Liverpool. I was employed as a cashier one day per week.


The following appears at paragraph 6:

“Shortly after John left my hours were reduced to one day per fortnight instead of one day per week.


49 In an affidavit dated 12 November 2001 by the applicant the following appears:
“I commenced employment with the Meat King butchers at Liverpool in September 1996. At that time I was employed as a casual cashier. I was paid at the rate of $10 per hour net and when I first started working I was employed for between 2 and 3 days per week for between 4 and 6 hours per day. As a result, I would take home between $80 per week and $180 per week”.


“When Wayne Bentley became Assistant Manager in January 1997 my hours were reduced to 1 day per fortnight for 6 hours per day. At that time I was taking home $60 per fortnight or $30 per week”


“After my hours were reduced over a period of 3 weeks, I asked for a reference in order that I could look for further employment. My hours were increased by the manager, Michael (whose last name I do not know), to an average of between 4 hours per day for 2 days per week (being $80.00 per week net) and 6 hours per day for 2 days per week (being $120.00 per week net). My hours remained at this level I was dismissed on 21 October 1997”.


Additionally, the applicant gave evidence broadly in conformity with her later affidavit, on 5 November 2001. [Transcript at page 7].



50 By letter dated 12 March 2002 the applicant’s solicitor stated in relation to this conflict of evidence that:
“The applicant contends that the contents of the affidavit should be accepted. The reference in the police statements to the number of hours worked should refer to the amount of hours which Ms Coleman was working after the respondent became manager and reduced her hours”. [Exhibit 9].


51 In order for the Tribunal to award damages for economic loss the tribunal must be satisfied on the evidence on the balance of probabilities. The evidence in relation to economic loss, as set out above, is unsatisfactory. The unsatisfactory and conflicting state of the evidence presented to the Tribunal on the question of dismissal and the question of hours worked is not sufficient to enable the Tribunal to be satisfied on the balance of probabilities in relation to economic loss.

52 Additionally, the applicant has a duty to mitigate her damages, that is, actively seek other work to reduce her loss.

53 Since October 1997 and until the date of the hearing in relation to this matter. The applicant:

· Did not attempt to find work until July 1998.
“At that time I was offered a casual job at a ladies’ fashion store in George Street, Liverpool called “Sara Moon”. The job was for Thursday nights and Saturday mornings. At the time when I was offered this job I was prescribed by Dr Tsang to take 3 to 4 Endep tablets every morning and every night. I found that these tablets had a sedative effect on me and I did not consider myself able to perform the work. Accordingly, I recommended the job to my friend, Wendy O’Lochlan, who was successful in her application for the job.” [Affidavit of applicant dated 12 November 2001].


· Has undertaken a ‘responsible service of alcohol’ course in 2001.
· was offered a casual position as a member of Bar staff at Club Tropicana in Fairfield. Ms Coleman worked there for one night because

“A mixture of the men and the alcohol and my safety of getting home and my safety of getting there and I just weighed it all up…” [Transcript 22 October 2001 at page 10].
· Indicated in evidence that she would feel comfortable working
“in a female environment, in a clothes shop maybe”. [Transcript 22 October 2001 at page 15].


54 The Tribunal is not satisfied that the applicant Ms Coleman has mitigated her damages by actively seeking other work.

55 The Tribunal takes into account the evidence given by the applicant as to her psychological state arising from the harassment and the medical evidence of Dr Tsang and Dr Cherry. Nevertheless the Tribunal is not satisfied that there is sufficient evidence of the reasons for failure to mitigate. The Tribunal found her to be an unimpressive witness in relation to this particular matter.

Counselling (Future)
56 As referred to earlier, a claim for the future costs of counselling may be made if supported by evidence of the anticipated length of the counselling treatment and the cost per hour. The applicant gave the following relevant evidence (Transcript 22 October 2001) at page 9):

Q. Have you had any treatment in relation to how this conduct has made you feel?
A. I have had counselling, yes.
Q. Who have you had counselling from?
A. Centre Care, Dr Tsang.
(Transcript 22 October 2001 at page 10:
Q. Do you see Dr Tsang?
A. Yes.
Q. How often do you see him?
A. I was seeing him every six weeks. It is eight to 12 weeks now.
57 Evidence was provided as to the cost of previous treatment by Dr Tsang [exhibit 5]. The report of Dr Tsang, however did not provide evidence of the anticipated length of the future counselling treatment. Sufficient evidence was not presented by the applicant for the Tribunal to be satisfied on the balance of probabilities as to an award for future counselling.

Moving Costs
58 The applicant has sought moving costs. In the applicant’s written submissions on quantum it is submitted that the respondent’s conduct was such that it necessitated the applicant changing her place of residence.

59 Dr Cherry in a report dated 18 March 1998 states:

“I feel it is necessary for Miss Coleman to move from the area in which she currently lives to avoid proximity to potential harassment and to allow her to feel comfortable and secure, thereby reducing her level of anxiety and reliance on medication.” (Exhibit 3).


60 In a letter dated 17 March 1997 in relation to an application for priority rehousing signed by Ms Rebekah Lucas, sexual assault counsellor. (Exhibit 3). The application is made on 2 bases:
(i) Concern that the applicant and her son may be “at risk from violence from Wendy’s ex-partner”.
(ii) “the offender [the respondent] knows where the family live and may continue to harass them”.
“the family’s local shops can put them in direct contact with the offender and his family”
“Adam and Wendy need to be in a save, calm and consistent environment to recover and move on from these experiences”.


61 Ms Coleman’s evidence before the Tribunal was that Mr Bentley
“Would turn up to my place intoxicated and just suggestions and on one occasion he was very abrupt and my girlfriend asked him to leave. I had people there.”
(Transcript 22 October 2001 - page 6).
In her statement to police (exhibit 4) Ms Coleman refers to Mr Bentley, the respondent,

“He then started attending my house uninvited whilst he was intoxicated. The first occasion I let him into my house because I thought he wanted to talk. While we were talking he placed his hand on my knee. I pushed his hand away and told him that didn’t want any sort of relationship. He then finished his beer and left. On the second occasion he tried to kiss me and I pushed him away and he left. On the third occasion my son let him into the house and when my son had gone to bed he said to me, “I’m debating whether to get onto my hands and knees and kiss you”. I told him to leave which he did.”


62 Ms Coleman’s evidence in relation to the uninvited visits by the respondent to her home are corroborated by the statement to police of the witness Ms Adams (Exhibit 4).

63 Damages are “by way of compensation for any loss or damage suffered by reason of the respondent’s conduct” s113(1) (i) of “the Act”.

64 In the circumstances of this matter where the Tribunal is satisfied that the respondent has sexually harassed the applicant both at work and at her home, the tribunal is satisfied that an award should be made for the moving costs sought of $150.

65 Although the letter from Ms Rebekah Lucas (exhibit 3) refers to both concerns relating to the respondent and the applicant’s ex-partner the Tribunal is satisfied on the balance of probabilities that the respondent’s conduct in sexually harassing the applicant led to the expenses associated with changing her place of residence.

66 The Tribunal is satisfied on the balance of probabilities that the causal nexus has been established.

Medical Expenses And Counselling (Past)
67 The Tribunal is satisfied on the balance of probabilities that an award should be made for medical expenses and past counselling in the amounts sought of $92.40 and $110.00 respectively.

68 It is clear from the medical reports contained in Exhibit 3 (Dr Tsang, Dr Cherry) that medical expenses and the need for counselling arose by reason of the respondent’s conduct in sexually harassing the applicant.

Costs
69 The applicant’s solicitors lodged written submissions seeking a costs order against the respondent pursuant to s114(2) of the Act. The submissions are based on the respondent’s failure to appear at the hearing of the matter.

70 Section 114(1) establishes a rule in relation to costs of an inquiry under the Act: “each party to an inquiry shall pay his or her owns costs”. That rule is subject to section 114(2) in which the Tribunal is empowered to make “such an order as to costs…as it thinks fit” to where it “is of the opinion in a particular case, “that there are circumstances that justify it doing so”.

71 The discretion and authorities relating to it were discussed in Gallagher v NSW Police Service [1998] NSW EOT. Two points made there are worth repeating for the purposes of this case: the discretion must be exercised judicially and no authority or rule can determine whether in any particular case an order should be made. Gallagher was cited with approval in Cleary Bros (Bombo) Pty Ltd v Cvetkovski [2001] NSW ADTAP 10.

72 In the view of this Tribunal there are not sufficient circumstances in this particular case that justify the making of an order as to costs other than as required by section 114(1). The respondent’s failure to appear is not sufficient in that regard.
Orders


73 The Tribunal finds the complaint substantiated and makes the following orders:

1. The respondent pay the applicant within 21 days of the date of this decision $10,352.40
2. No order as to costs.