Cross v Hughes - [2006] FMCA 976

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CROSS v HUGHES & ANOR

[2006] FMCA 976

HUMAN RIGHTS – Sexual harassment – undefended proceedings – award of aggravated damages appropriate.

Human Rights and Equal Opportunity Commission Act 1986, s.46PH(2)
Federal Magistrates Act 1999
Federal Court Rules, o.62

Hughes v Car Buyers Pty Ltd & Ors (2004) FMCA 526
Hall v A. and A. Sheiban Pty Ltd (1989) 20 FCR 217
Wattle v Kirkland (2001) FMCA 66
Bishop v Takla & Ors (2004) FMCA 74

Applicant:

MELANIE CROSS

First Respondent:

JUSTIN OWEN HUGHES

Second Respondent:

HOKONUI ENTERPRISES PTY LTD T/A OAKBANK INSURANCE SERVICES

File number:

ADG 166 of 2005

Judgment of:

Lindsay FM

Hearing date:

28 June 2006

Date of last submission:

28 June 2006

Delivered at:

Adelaide

Delivered on:

7 July 2006

REPRESENTATION

Counsel for the Applicant:

Ms K. Eaton

Solicitors for the Applicant:

Bourne Lawyers

First Respondent:

No appearance

Second Respondent:

No appearance

ORDERS

That the Court declares that the First Respondent unlawfully sexually harassed the Applicant contrary to s.28A and s.28B of the Sex Discrimination Act 1984.
That the First and Second Respondents do pay the Applicant compensation in the amount of $11,822 comprised of:
(a)loss of income fixed in the amount of $3300;
(b)special damages fixed in the amount of $522;
(c)general damages fixed in the amount of $5000;
(d)aggravated damages fixed in the amount of $2500.
That in addition to any other order for costs made during the course of these proceedings, the First and Second Respondents do pay the Applicant’s costs of and incidental to these proceedings fixed in the sum of $10,275.09.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADG 166 of 2005

MELANIE CROSS

Applicant

And

JUSTIN OWEN HUGHES

First Respondent

HOKONUI ENTERPRISES PTY LTD T/A OAKBANK INSURANCE SERVICES

Second Respondent

REASONS FOR JUDGMENT

These proceedings relate to an application filed on 27 July 2005, in which Ms Melanie Cross seeks an order that the respondent Justin Hughes and Hokonui Enterprises Pty Ltd, trading as Oakbank Insurance Services (hereinafter "the company") pay her compensation for economic loss in the amount of $3822 and compensation for non‑economic loss in the sum of $25,000.
The application does not specify the legislative source of the power to award compensation, but we know from reading the affidavit and the information sheet filed with the application that the application is for an order pursuant to the provisions of the Human Rights and Equal Opportunity Commission Act 1986 on account of what is alleged to be the respondents' liability in respect of sexual harassment of the applicant during the course of her employment.
The application comes to the Court after a notice of termination pursuant to s.46PH(2) pursuant to Human Rights and Equal Opportunity Commission Act given on 22 June 2005.
It is material to pause to outline the progress of the proceedings in this Court.
The application first came before the Court on 12 August 2005. On that day the respondents were given an opportunity to file an amended…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cross v Hughes

Details

AGLC: Cross v Hughes [2006] FMCA 976
Case: [2006] FMCA 976
Decision Date: 7 July 2006

CaseChat Overview and Summary

Cross v Hughes is a case before the Australian court, involving a dispute between the applicant, Cross, and the two respondents, Hughes and another entity. The applicant brought forward allegations of unlawful sexual harassment by the first respondent, Hughes, against the provisions of the Sex Discrimination Act 1984. The case was heard and determined by the court, which was required to decide on the validity of the applicant's claims and the appropriate legal remedies. The court had to assess whether the first respondent's conduct constituted unlawful sexual harassment as defined by the relevant sections of the Sex Discrimination Act 1984 and determine the appropriate compensation and costs to be awarded to the applicant.

The legal issues before the court included whether the first respondent's actions constituted unlawful sexual harassment under s.28A and s.28B of the Sex Discrimination Act 1984. The court also had to determine the quantum of compensation to be awarded to the applicant, including loss of income, special damages, general damages, and aggravated damages. Furthermore, the court had to decide on the costs to be borne by the respondents in relation to the proceedings. The court considered the evidence presented, including the applicant's testimony and any relevant documentation, to make its determination.

The court found that the first respondent had indeed engaged in conduct that constituted unlawful sexual harassment under the Sex Discrimination Act 1984. The court awarded the applicant compensation in the amount of $11,822, comprised of loss of income, special damages, general damages, and aggravated damages. Additionally, the court ordered the first and second respondents to pay the applicant's costs of and incidental to the proceedings, amounting to $10,275.09. The court's decision was based on the evidence presented and the applicable legal principles governing the case. The court's orders reflect its determination of the appropriate remedies to address the applicant's claims of unlawful sexual harassment.

Orders

Orders of the court

That the Court declares that the First Respondent unlawfully sexually harassed the Applicant contrary to s.28A and s.28B of the Sex Discrimination Act 1984.

That the First and Second Respondents do pay the Applicant compensation in the amount of $11,822 comprised of:

(a) loss of income fixed in the amount of $3300;

(b) special damages fixed in the amount of $522;

(d) aggravated damages fixed in the amount of $2500.

That in addition to any other order for costs made during the course of these proceedings, the First and Second Respondents do pay the Applicant’s costs of and incidental to these proceedings fixed in the sum of $10,275.09.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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