Elliott v Nanda

[2001] FCA 418

FEDERAL COURT OF AUSTRALIA

Elliott v Nanda & Commonwealth [2001] FCA 418

HUMAN RIGHTS – sex discrimination – sexual harassment – whether sexual harassment may constitute sex discrimination – applicant employed as medical receptionist/secretary at doctor’s surgery – claim against doctor

HUMAN RIGHTS – sex discrimination – enforcement of determination by Human Rights and Equal Opportunity Commission (“HREOC”) – hearing de novo – whether scope of application to Federal Court is limited by determination of HREOC

HUMAN RIGHTS – sex discrimination – employment agency – Commonwealth Employment Service (“CES”) – whether CES “permitted” sex discrimination against applicant by doctor – where CES referred applicant to doctor for employment – where CES had earlier received complaints from several women about sexual harassment by doctor at previous surgery

HUMAN RIGHTS – sex discrimination – compensation – damages – whether Federal Court bound by quantum of damages awarded by HREOC – aggravated damages – where doctor did not appear at inquiry before HREOC

WORDS AND PHRASES – “permit”

Sex Discrimination Act 1984 (Cth) ss 5, 14, 22, 26, 28A, 28B, 83A, 105
Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 46PO

Commonwealth v Sex Discrimination Commissioner (1998) 90 FCR 179 referred to
Flower & Hart (a firm) v White Industries (Qld) Pty Ltd (1999) 87 FCR 134 referred to
Aldridge v Booth (1988) 80 ALR 1 applied
D’Antuono v Minister of Health (1997) 80 FCR 226 referred to
O’Callaghan v Loder [1983] 3 NSWLR 89 applied
Hall v A & A Sheiban Pty Ltd (1988) 20 FCR 217 considered
Gilroy v Angelov [2000] FCA 1775 considered
Cooper v Human Rights and Equal Opportunity Commission (1999) 93 FCR 481 considered
Adelaide City Corporation v Australasian Performing Rights Association Ltd (1928) 40 CLR 481 referred to
Evans v Accident Insurance Mutual Holdings Ltd [1998] 2 Qd R 350 referred to
Young v Australian Workers’ Union (1974) 5 ALR 347 referred to
Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563 applied
Re Chisum Services Pty Ltd (1982) 7 ACLR 641 referred to
Macquarie Bank Ltd v Sixty-Fourth Throne Pty Ltd [1998] 3 VR 133 referred to
Triggell v Pheeney (1951) 82 CLR 497 referred to
Coyne v Citizen Finance Limited (1991) 172 CLR 211 referred to
Whittle v Paulette (1994) EOC 92-621 referred to
Greenhalgh v National Australia Bank Ltd (1997) EOC 92-884 referred to
McIntyre v Tully (1999) 90 IR 9 referred to
John v M G N Ltd [1997] QB 586 referred to
Spautz v Butterworth (1996) 41 NSWLR 1 referred to
Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 referred to

LEANNE ELLIOTT v PREM NANDA AND COMMONWEALTH OF AUSTRALIA
N 720 OF 1999

LEANNE ELLIOTT v COMMONWEALTH OF AUSTRALIA
N 478 OF 2000

MOORE J
11 APRIL 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 720 OF 1999

BETWEEN:

LEANNE ELLIOTT
APPLICANT

AND:

PREM NANDA
FIRST RESPONDENT

COMMONWEALTH OF AUSTRALIA
SECOND RESPONDENT

JUDGE:

MOORE J

DATE OF ORDER:

11 APRIL 2001

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.   The proceeding be stood over for directions on 27 April 2001 at 9.30am.

2.   The parties file and serve written submissions within 10 days of the publication of these reasons dealing with what orders should be made concerning the payment of compensation and costs.

NOTE: (i)       On 22 June 2000 the Court made the following order:

1.The Court orders that the names, any contact details or any other means of identifying named jobseekers and previous employees of Dr Nanda or the Terrace Medical Centre not be published.  This order does not apply to the Applicant or Renae Mathews or any person called to give evidence in the proceedings.

(ii)       On 23 August 2000 the above order was varied by the following order:

1.The name of Belinda Plumb, any contact details or any other means of identifying her not be published.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 478 OF 2000

BETWEEN:	LEANNE ELLIOTT APPLICANT
AND:	COMMONWEALTH OF AUSTRALIA RESPONDENT
JUDGE:	MOORE J
DATE OF ORDER:	11 APRIL 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The proceeding be stood over for directions on 27 April 2001 at 9.30am.

2.The parties file and serve written submissions within 10 days of the publication of these reasons dealing with what orders should be made concerning the payment of compensation and costs.

NOTE: (i)       On 22 June 2000 the Court made the following order:

1.The Court orders that the names, any contact details or any other means of identifying named jobseekers and previous employees of Dr Nanda or the Terrace Medical Centre not be published.  This order does not apply to the Applicant or Renae Mathews or any person called to give evidence in the proceedings.

(ii)       On 23 August 2000 the above order was varied by the following order:

1.The name of Belinda Plumb, any contact details or any other means of Identifying her not be published.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 720 OF 1999

BETWEEN:

LEANNE ELLIOTT
APPLICANT

AND:

PREM NANDA
FIRST RESPONDENT

COMMONWEALTH OF AUSTRALIA
SECOND RESPONDENT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 478 OF 2000

BETWEEN:	LEANNE ELLIOTT APPLICANT
AND:	COMMONWEALTH OF AUSTRALIA RESPONDENT

JUDGE:	MOORE J
DATE:	11 APRIL 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1. These proceedings involve two applications brought by Ms Leanne Elliott ("the applicant"). One is an application brought under s 83A of the Sex Discrimination Act1984 (Cth) ("S D Act") against Dr Prem Nanda ("the respondent") for whom the applicant worked as a receptionist in late 1995 and early 1996 ("the employment proceeding"). The applicant alleges that the respondent sexually harassed her in contravention of the S D Act and seeks to enforce against the respondent a determination of the Human Rights and Equal Opportunity Commission ("HREOC"). The other application is brought under s 46PO of the Human Rights and Equal Opportunity Commission Act1986 (Cth) ("HREOC Act") against the Commonwealth of Australia alleging contravention of the S D Act in several respects discussed in more detail later ("the agency proceeding"). The contravention by the Commonwealth is said to arise through dealings the applicant had with the Commonwealth Employment Service ("CES") when she obtained employment with the respondent. All parties accepted that one set of reasons could be given when judgment was given in each application.

   Background

2. On 8 May 1996, the applicant lodged with HREOC a complaint, in the form of a letter, of “sexual harassment and intimidation” against the respondent and Terrace Medical Centre. Though the applicant may have been employed by the respondent and his wife (who are partners) or a service company of which they were directors, the matter has proceeded in this Court on the basis that what was in issue was the liability of the respondent. That is, no submissions were made by the respondent putting in issue what was asserted by the applicant, namely that the respondent had been the applicant's employer at all material times for the purposes of the S D Act.

3. After the complaint was lodged, it was investigated by the Sex Discrimination Commissioner (“S D Commissioner”).  During the investigation, the S D Commissioner formed the view that the Department of Employment, Education, Training and Youth Affairs (“DEETYA”) should be joined as a respondent to the complaint.  The S D Commissioner, by letter dated 18 February 1997, advised DEETYA of this view and invited submissions from DEETYA on whether it should be a respondent.  By letter dated 15 April 1997, DEETYA submitted that it ought not be joined.  By letter dated 6 June 1997, an officer of the S D Commissioner advised DEETYA that the S D Commissioner remained of the view that the investigation should continue with DEETYA as a respondent.

4. On 30 September 1997, the S D Commissioner referred the complaint to HREOC under s 57(1)(b) of the S D Act for inquiry with DEETYA named as a respondent. The report of the S D Commissioner set out the complaint as follows:

   “1. THE COMPLAINT:

   The complainant alleges that she was sexually harassed during her employment at Terrace Medical Centre by the Director, Dr Prem Nanda, between 4 September 1995 and 24 February 1996, when she resigned her employment due to the alleged harassment.

   Further, the complainant claims that she was referred for employment with Dr Prem Nanda by the Commonwealth Employment Service (CES), Department of Employment, Education, Training and Youth Affairs (DEETYA).  The complainant claims that CES had received previous complaints of sexual harassment by Dr Nanda from CES clients.  The complainant therefore claims that DEETYA discriminated against her on the basis of her sex by placing her in a sexually hostile working environment.”

5. On 16 March 1998, the matter came before Inquiry Commissioner Innes at HREOC (“the Commissioner”). DEETYA sought a direction from the Commissioner under s 77(1) of the S D Act that it need not appear at the inquiry. The Commissioner refused the application.

6. On 21 April 1998, the Commonwealth applied to the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth) for review of, first, the purported referral to HREOC by the S D Commissioner of a complaint against DEETYA and, secondly, the refusal of the Commissioner to make the direction sought. On 17 December 1998 the application was determined by Branson J: see Commonwealth v Sex Discrimination Commissioner (1998) 90 FCR 179. Her Honour held that the referral by the S D Commissioner did not involve a reviewable decision, and that the Commissioner did not err in refusing the DEETYA’s application, given the manner in which it was framed. However, her Honour concluded that, on the proper construction of the S D Act, the S D Commissioner had no authority to refer a complaint against DEETYA to HREOC, and accordingly declared that the purported referral did not give HREOC jurisdiction to inquire into any complaint by the applicant against the Commonwealth. In the meantime, on 30 April 1998, the applicant lodged a fresh complaint with HREOC against DEETYA.

7. On 12 April 1999, the Commissioner conducted an inquiry into the complaint against the respondent.  The respondent did not appear.  The circumstances in which the inquiry proceeded in the respondent’s absence were set out by the Commissioner in his reasons:

   “The matter was set down for hearing against Dr Nanda and the Terrace Medical Centre from 12-15 April 1999 in Raymond Terrace.

   At a directions hearing on 12 March 1999, Dr Nanda sought an adjournment of the hearing because he was having difficulty arranging for all of his witnesses to be available.  The respondent’s solicitor indicated that if the adjournment was not granted Dr Nanda might not appear at the hearing.

   In considering this request I noted that on 11 February 1999, the respondents’ solicitor had been asked whether the proposed dates for hearing, that is 12-15 April 1999, were acceptable.  On 3 March 1999, having previously attempted to contact the respondent’s solicitor on a number of occasions, the Commission’s hearing solicitor sent a facsimile to the respondent’s solicitor indicating that the matter would be listed for hearing on 12-15 April 1999.

   Taking into account that the matter has been underway for some time, that both parties had been informed of the proposed hearing dates on or about 11 February 1999, and given that Dr Nanda was unable to provide any evidence or information at the directions hearing to suggest that his witnesses would be any more readily available at a later date, I declined to grant the adjournment.

   On 8 April 1999, the respondents’ solicitor advised the Commission in writing that Dr Nanda would not be appearing at the hearing.  The hearing solicitor handling the file drew to their attention in writing s. 63(2) of the Act which allows the Commission to proceed with a hearing in a party’s absence if notice of that hearing has been given to the party.  On 9 April 1999, Dr Nanda’s solicitors confirmed in writing that they had received the s. 63 notice.

   When the complainant became aware that it was Dr Nanda’s intention not to appear she made an application that the hearing should take place in Sydney, rather than Raymond Terrace, as this would reduce the complainant’s costs.  As I did not want to limit the respondents’ opportunity to participate in the inquiry by changing the venue, I instructed the hearing solicitor to contact the respondents’ solicitors.  Only on the receipt of confirmation that the respondents did not intend to appear did I accede to the complainant’s request for a change of venue.

   The hearing took place in Sydney on 12 April 1999.”

8. The Commissioner gave an ex tempore decision, and published his written reasons on 21 May 1999. He found that the incidents complained of occurred as the applicant had described them. He determined that they amounted to sexual harrassment within the meaning of s 28A of the S D Act, and that the respondent had contravened s 28B. Because of those findings, he did not consider whether the respondent had also contravened ss 5 and 14. He directed the respondent to pay the applicant, within 28 days, $15,000 in general damages for hurt and humiliation, and $100 in special damages (representing the cost of five counselling sessions the applicant had taken).

9. The respondent did not comply with this direction. In 1995, s 83A was inserted into the S D Act by the Human Rights Legislation Amendment Act 1995 (Cth), following the judgment of the High Court in Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245. That section enabled a complainant to commence proceedings in the Federal Court to enforce a determination of HREOC. On 26 July 1999 the applicant filed an application under s 83A.

10. At that stage, HREOC had not yet held an inquiry into the applicant’s complaint against DEETYA. Later, the HREOC Act was amended by the Human Rights Legislation (Amendment) Act No. 1 1999 (Cth) (“HRLA Act”). Section 12 of the HRLA Act, which came into force on 13 April 2000, relevantly provided that a complaint into which an inquiry had not yet been held was taken to have been terminated by HREOC on that day. Accordingly, the applicant’s complaint against DEETYA was terminated under s 12. The new s 46PO of the HREOC Act enabled a person whose complaint had been terminated in this way to apply to the Federal Court alleging unlawful discrimination: defined to mean, relevantly, unlawful conduct prescribed by Part II of the S D Act. On 11 May 2000, the applicant filed, under s 46PO, an application in the Federal Court against the Commonwealth.

11. On 12 May 2000, the applicant filed a notice of motion seeking orders that the proceedings against Dr Nanda and the Commonwealth be consolidated or tried together.  The motion was heard on 30 May 2000 and was opposed by both the respondent and the Commonwealth.  On 5 June 2000, I made orders to the effect that:

    (i)        the employment proceeding and the agency proceeding would be heard together;

    (ii)evidence in one proceeding would be evidence in the other, subject to the following order;

    (iii)evidence led in the agency proceeding concerning complaints about the conduct of the respondent by persons other than the applicant would not be treated as evidence in the employment proceeding; and

    (iv)time would be specially fixed to hear submissions in the agency proceeding on the scope and operation of ss 105 and 106 of the S D Act.

12. On 19 June 2000, on the application of the Commonwealth, I revoked the second order in the preceding paragraph (that evidence in one matter would be evidence in the other), and instead made orders formulated by the Commonwealth (which were not opposed) to the following effect:

    (i)documentary evidence of the applicant that was to be tendered in both proceedings should be tendered separately as against the respective respondent (Dr Nanda and the Commonwealth) in each proceeding;

    (ii)the applicant was to indicate to the Court whether she sought to rely on any oral evidence given in the employment proceeding as evidence-in-chief in her case against the Commonwealth;

    (iii)      in relation to the oral evidence relied on by the applicant in both matters:

    (a)the respective respondent in each matter (Dr Nanda and the Commonwealth) should raise any objections to the applicant’s oral evidence during the course of that evidence, and the objections as to the admissibility of the evidence in each matter would be ruled on;

    (b)the respondent (Dr Nanda) was to cross-examine any witness, and if there was to be any re-examination of the witness, this would occur after any cross-examination by the Commonwealth;

    (iv)submissions should be made by the applicant and the respondent in the employment proceeding, before submissions were made by the applicant and the Commonwealth in the agency proceeding.

13. I should note that during final submissions, counsel for the applicant indicated that she had felt unable, because of the order originally made (on 5 June 2000) concerning the evidence about complaints about the conduct of the respondent by other young female employees, to lead propensity evidence from other young female employees against the respondent in the employment proceeding.  I then explained that it had never been my intention to limit the applicant this way.  I also explained that the purpose of the order was to ensure that evidence of complaints by other young female employees led against the Commonwealth in the agency proceeding would not, without more, be evidence against the respondent in the employment proceeding.

14. Towards the conclusion of the hearing (on 3 October 2000), an issue arose concerning the status in the agency proceeding of any finding of unlawful conduct on the part of the respondent in the employment proceeding. That is, whether the Commonwealth would be bound by any finding that the respondent had acted unlawfully. This was an important issue because the liability of the Commonwealth was said, on one basis, to arise because it permitted the respondent to engage in unlawful conduct: see s 105 of the S D Act. It was an issue that had been addressed when the applicant commenced to call her evidence on 22 June 2000. There was discussion then about whether it was necessary for the applicant to prove, as against the Commonwealth, that the respondent engaged in unlawful conduct. At the conclusion of the discussion counsel for the Commonwealth accepted a proposition to the effect that if the applicant was successful against the respondent then, subject to argument about the scope of the sections that were said to give rise to accessorial liability, the applicant could rely on the success against the respondent in its case against the Commonwealth. When, contrary to my understanding that the issue was settled, it arose again on 3 October 2000 I made an order joining the Commonwealth as a party in the employment proceeding. I did so to enable the Commonwealth to make submissions in that proceeding (over the opposition of counsel for the applicant) and to bind the Commonwealth to any decision or order made in that proceeding.

    Witnesses

15. It is convenient, at this point, to identify the individuals who gave evidence (apart from the applicant and the respondent). The applicant called evidence from the following witnesses:

    ·     Ms Renae Mathews:  Mathews was employed by the respondent at the Terrace Medical Centre as a medical receptionist/secretary during July and August 1995.

    ·     Ms Janelle Cooper:  Cooper was employed by the respondent at his surgery at 29 High Street, Greta (“the Greta surgery”), as a medical receptionist/secretary during July and August 1985.  Her evidence was led in the agency proceeding only.

    ·     Ms Z:  Ms Z was employed by the respondent at the Greta surgery as a medical receptionist from November 1985 to Christmas 1986.  I include Ms Z in his list though ultimately her evidence (which, by direction of the Court, was to be called in reply) was not read.

    ·     Ms Catherine Elliott:  Eliott is the applicant’s mother.

    ·     Ms Louise Cox:  Cox is the applicant’s aunt.

    ·     Dr Philippa Kennedy:  Kennedy is a general practitioner with a surgery in Merewether with whom the applicant has had a number of consultations since March 1995.

    ·     Ms Yvonne Pacey:  Pacey is a counsellor employed by Relationships Australia (NSW) who counselled the applicant on five occasions in 1996.

1. The respondent called evidence from the following witnesses:

   ·     Ms Joleen Peacock:  Peacock worked intermittently at the respondent’s Raymond Terrace surgery as a receptionist/secretary from May 1994 to December 1997.

   ·     Ms Tonia Griffin:  Griffin worked intermittently at the respondent’s Raymond Terrace surgery as a receptionist/secretary from August 1995 for approximately three years.

   ·     Mr Stephen Bates:  Bates is a real estate agent who has had a professional relationship with the respondent for approximately five years.

   ·     Mr Peter Sarroff:  Sarroff is a real estate agent who has had a professional relationship with the respondent for approximately fifteen years, and is a personal friend of the respondent.

   ·     Mr Liudvikas Prazauskas: Prazauskas has been a patient of the respondent for approximately sixteen years and is a close personal friend.

   ·     Mr Thomas Quigley:  Quigley has been a patient of the respondent for twelve years and also is a friend.

   ·     Mr Robert Richards:  Mr Richards has been a patient of the respondent since about 1991 and is a close personal friend.

   ·     Mrs Alice Richards:  Mrs Richards has been a patient of the respondent since about 1987 and is a close personal friend.  Since moving to Sydney four years ago, Mrs Richards has continued to visit the respondent occasionally for medical treatment.

2. The Commonwealth called evidence from one witness, Mr Peter Taylor.  Taylor commenced employment with the former Department of Employment and Industrial Relations, in a position at the CES Broadmeadow.  In 1993, he was made Branch Manager at the CES in Newcastle, and later at the CES in Hamilton.  In 1996, he moved to the CES Hunter Area Office where he worked on policy and CES administration issues.  Taylor was involved in dealing with the complaint made by the applicant about the respondent to the CES.

   The evidence in the employment proceeding and findings concerning the allegations of sexual harassment

3. The alleged conduct of the respondent that gave rise to the complaint against him was detailed by the applicant in two documents she prepared comparatively shortly after she left the respondent’s employment.  One was a statement given to an officer of the CES on 6 March 1996 (probably made on 5 March 1996) and the other was the letter sent to HREOC on 8 May 1996.  It is convenient to describe the complaints by setting out the allegations in the second of those documents:

   “8 May 1996

   To The Assistant Secretary

   STATEMENT OF SEXUAL HARASSMENT AND INTIMIDATION PERPETRATED BY DR. PREM RATTAN NANDA AT THE TERRACE MEDICAL CENTRE, 13 WILLIAM STREET, RAYMOND TERRACE, NEW SOUTH WALES.

   I wish to draw your attention to the conduct of Dr. Nanda, my former employer, at his medical practice in Raymond Terrace.  From the time I commenced work as a medical receptionist/secretary on 4 September 1995 until my resignation on 2 March 1996, Dr. Nanda subjected me to sexual harassment and intimidation, details of which are outlined in this statement.

   I clearly recall the following incidents and begin my statement with excerpts from my diary.

   18 September 1995:  Dr. Nanda stated that to get out of a speeding fine you just ‘suck the coppers off because they blow in 5 minutes anyway’.

   20 September 1995:  Dr. Nanda grabbed my breasts twice while showing me how to use the ECG machine.

   16 October 1995:  Dr. Nanda complained that Joleen (a former receptionist) couldn’t do much work because she’d had sex with the stud (Joleen’s boyfriend) 5 times over the weekend and that ‘her pussy was on fire’.

   19 October 1995:  Dr Nanda informed me that he liked big tits and told me about three girls on the corner who give blow jobs for a flagon of wine.

   21 October 1995:  Dr. Nanda scrutinized my breast in a manner which I found highly offensive.

   23 October 1995:  Dr. Nanda said that one of his tenants should pay rent by sleeping with him.

   26 October 1995:  Dr. Nanda stated that his tenant, Susan Boyce, should ‘root’ him if she couldn’t afford to pay the rent and wanted to keep living in his flat.

   7 February 1996:  Dr. Nanda recounted his many affairs with patients and asked me ‘what the chances were of me going to the cops if he locked up the surgery, threw me on the floor, sucked my tits, sucked me down below and then fucked me.’  He told me that Belinda played with his dick and that if she hadn’t involved her parents they could have fucked the day she turned sixteen.

   8 February 1996:  Dr. Nanda boasted that he had screwed about 200 women and told me about an African girl he’d paid to have sex with.  He also related how he’d forced Kelly a former receptionist, to buy groceries for this girl and to collect her from the TOCAL College.

   Dr. Nanda informed me that he and a friend, Peter Scharoff, were trying to get women to ‘root’ them and that he had set Peter up with a patient.  He also told me how he wanted to ‘root’ one of his patients, Melinda Gorton.

   Dr. Nanda also took home 8 sample boxes of Noversyl for his personal use.

   12 February 1996:  Dr. Nanda patted me on the bottom and tried to kiss me.  He also asked Joleen to ‘suck his cock’.

   13 February 1996:  Dr. Nanda brushed up against my breasts at least 4 times.  When Peter Scharoff called into the surgery, he and Dr. Nanda discussed the latter’s visit to a massage parlor.  Dr. Nanda continued the discussion with me after Peter Scharoff left.  He told me how he had gone to the parlor, picked out a girl, and then recognised her as a former patient from Greta, a female he had ‘rooted’ a number of times before.  He’d asked her if he had to use a cap (condom) and she'd said ‘yes’.  She had then introduced him to a female friend with whom she had just performed a lesbian act for some other man.  Dr. Nanda then told me that ‘she massaged me with her tits, sucked me until I was hard, and jumped on top of me.  I slipped it into her and she loved every minute of it because she was screaming and jumping up and down’.

   14 February 1996:  Dr. Nanda informed me that if anyone did the wrong thing by him or threatened his career, reputation or family, they’d be found floating dead in a river.  I took this as a warning to me.

   On one occasion Dr. Nanda told Joleen that if she gave him ‘a suck’ she could have a Traineeship and that if she paid him 5 cents a day he would massage her ‘tits’ so that they would become bigger.

   Another time, he told me that he loved women with ‘big tits’.

   Once, when I was going out to lunch, he asked me to tell him if I got raped or anything so that he could join in.

   Dr. Nanda massaged my shoulders on 4 or 5 occasions.

   Dr. Nanda told me that he’d given a 14 year old girl a trail bike for sleeping with him.

   One day, when I couldn’t find a patient’s file, he hit me on the back in the patient’s presence and laughed at my protests.  Later that day he gave me his car keys and told me to take the car for a spin.

   Dr. Nanda complained that his wife was ‘stale in bed’ because she wouldn’t give him oral sex.  He said that he liked Aussie girls because they ‘give very good oral sex.’

   He often taunted me about my weight, telling me that I was getting fat and that my ‘arse’ was huge.  He questioned my morals and accused my parents of not raising me properly because I went out at weekends to nightclubs and was involved in a sexual relationship outside marriage with my boyfriend of three years.

   When Dr. Nanda introduced me to Lou, an acquaintance from Greta, he asked me to call him ‘Uncle Lou’ and told me how well all his other receptionists had got on with ‘Uncle Lou’.  One day ‘Uncle Lou’ asked me how much it would take for me to do favors for Dr. Nanda.

   One day, during the early weeks of my employment, Dr. Nanda returned from lunch with a button missing from his pants and told me to sew it back on.  I agreed, thinking that he’d wait until the next day when he wouldn’t be wearing the pants.  However, he produced the sewing kit and stood there while I knelt on the floor and sewed it on, with the zipper on the pants down.

   When I had no money to register my car Dr. Nanda told me about all the women who slept with him for money to pay their bills, register their cars, and buy clothes etc.  He suggested that by sleeping with him I could earn more money and register my car without having to borrow money from my parents.  I responded by telling him that I had more respect for myself.

   In describing what happened to the ‘comfort’ women in Japan [during] the war he related the following:

   ·One of the comfort women contracted VD and infected about 50 soldiers so they opened up her legs and shoved a red hot branding iron into her ‘pussy’. 

   ·Another ‘comfort’ woman who bit a soldier on the arm was rolled around on a board of nails, mutilated and then decapitated.

   ·A ‘comfort’ woman who protested was burnt in the ‘pussy’ and ‘clitty’.

   Dr. Nanda undermined my relationship with my boyfriend, an apprentice mechanic, by telling me that I should marry a professional like him who could provide me with a good car and home.  He stated that ‘love has nothing to do with marriage and that a car doesn’t run on spunk’.

   Dr. Nanda pushed me to take an active role in surgical procedures and on one occasion required me to remove a patient’s stitches.  Once, after taking a pap smear from a patient he told me that next time he’d be getting me to clean the lady’s cervix with an instrument.  I also assisted in removal of moles, warts, cysts. I felt very unsure and uncomfortable about such practices and was concerned about ethical and legal implications.

   Dr. Nanda frequents the local supermarket where one of his former receptionists is working.  He consistently walks through her checkout without purchasing anything and returns to the surgery feeling proud of intimidating her.

   During the amount of time that I worked for Dr. Nanda was the worst working experience that I have had in the three years I have been part of the work force.  Along with all of the intimidation and sexual harrasment were threats made at me, Dr. Nanda being a so called respected member of the public I have had to give a lot of consideration to lodging this complaint.  I left the position of receptionist secretary with very low self esteem and self worth, I had very little confidence in myself.”

4. Generally the applicant's evidence in these proceedings was that these events took place as described in this letter.  At the time of these events, the applicant was 17 years old.  The evidence of the respondent was that either the events simply did not occur or that, in some instances, they did not occur in the way described by the applicant and, effectively, if they did occur they did not involve improper or inappropriate conduct on his part.  Several witnesses called by the respondent either directly contradicted the evidence of the applicant or cast doubt on its veracity.

5. Before descending into detail, it should be observed that on the applicant's account, she was subjected to various forms of sexual harassment by the respondent which commenced shortly after she began working for him, and that she made a contemporaneous record of many of the instances of harassment in two diaries and also detailed them in the complaints given to the CES and HREOC.  At least implicit in the defence of the respondent is that the applicant's evidence about some of the incidents is fabricated and her account about others is a deliberate distortion of what, in fact, occurred.  It is also at least implicit in the defence that the entries in the diary which is in evidence were falsely made either on the day in question or later.  The import of the defence is also that when the written complaint was given to the CES in March 1996 the applicant knew that its contents were false and the applicant also knew that the letter of complaint to HREOC was false when it was sent in May 1996.  Some evidence led by the respondent was to the effect that at least one reason the applicant made the false allegations in 1996 (and, by implication, has pursued them since (including by giving false evidence)) was to extract money from the respondent.

6. I should, at this stage, say something about my impressions of the central witnesses.  They are the applicant, the respondent and Peacock.  I include Peacock because she gave evidence that directly contradicted the evidence of the applicant about some incidents of alleged sexual harassment where Peacock was said by the applicant to have been present.

7. The applicant did not appear to be giving a false account of events as she then recalled them.  She was prepared to concede comparatively readily that evidence earlier given was or might be wrong and that things she had said about the incidents that founded her complaint might not be or were not consistent.  Indeed, at times, she appeared prepared to make concessions rather too readily because she did not have the strength to join issue with the cross-examiner. She was cross-examined for over a day and her evidence was constantly challenged often by reference to matters of detail that may have been forgotten or obscured with the passage of time.  As the cross-examination continued it became obvious that the applicant was quite distressed when giving evidence.  There were several occasions when she broke down crying.  There could, of course, be several explanations for this (alone or in combination).  One may be that she was affronted and distressed that counsel for the respondent was challenging her account of what had occurred even though it was true.  Another may be that her account was false (either in whole or in part) and she was distressed because it was being challenged and, she thought, exposed as false.  It may have simply been the stress associated with giving evidence in circumstances where she has been pursuing her complaint for over four years, the success she had in HREOC has proved to be illusory and she has had to give yet another account of what she says occurred.  It is probable the last matter was at least one factor causing her distress.  There may be other explanations including her general emotional state (having regard to the evidence of Dr Kennedy). However my overall impression of the applicant as a witness was as a witness of truth trying, as best she could, to recall details of events that occurred several years earlier.

8. The respondent on the other hand did not impress me at all.  There were many occasions when I gained the impression that he was constructing an answer to a question designed to place his case in the most favourable light.  He gave his evidence in a studied way.  He was, overall, not an impressive witness.

9. Peacock, unlike the applicant and the respondent, did not have an obvious and direct interest in the proceedings that would cause her to tailor her evidence or give false evidence.  However I did gain the impression that she felt a strong loyalty to the respondent and had a strong (and negative) view about the applicant because she had made and pursued the complaint about the respondent commencing with the statement to the CES in March 1996.  In that statement and the letter to HREOC in May 1996 the applicant alleged that on 20 September 1995 the respondent had grabbed her breasts while showing her how to use an ECG machine.  In his response to HREOC in a letter dated 25 September 1996, the respondent assumed this was a reference to an occasion on 20 September 1995 when he had demonstrated the use of the machine on Quigley in the presence of the applicant and Peacock.  In that letter the respondent said "Both [Peacock and Quigley] have expressed their astonishment and have given me letters that nothing happened in their presence".  In a written response dated 23 October 1996, the applicant did not deny that there may have been a demonstration of the machine involving Quigley.  She simply stated the incident she was describing was "a different time".

10. However Peacock had, presumably acting on the belief the respondent had about the occasion the applicant was referring to (and probably after speaking to the respondent), prepared a statement dated 5 August 1996 denying that the respondent touched "our breasts" during the demonstration involving Quigley.  In that statement Peacock said, "I am disappointed that Leanne could accuse the doctor of such a low thing.  The doctor behaved in a very professional manner".  During cross-examination, Peacock was asked by the applicant's counsel a question (in several parts) that had been asked of a number of other witnesses.  The import of the question was that the witness would be prepared to do anything for the respondent.  Peacock agreed she was anxious to defend the respondent and would go out of her way to do so though she said she would not lie.  She spoke quite passionately when she gave this evidence which was consistent with her having a strong sense of loyalty to him.  Indeed she had earlier said that he was "a fine boss".  Both the answer and the way it was given were consistent with my general impression that her evidence was not impartial or dispassionate.  I return to the issue of Peacock's credit later in these reasons.

11. It is convenient to commence an analysis of the evidence by considering the evidence led by the respondent about the applicant's motives.  Evidence about this matter was given by Peacock and Griffin and related to a conversation with Mathews on 2 August 1996 at the Spinning Wheel Hotel in Raymond Terrace (though there was other evidence about a statement the applicant had made concerning remarks of her aunt about getting compensation for sexual harassment).  Mathews gave evidence about the conversation at the Spinning Wheel Hotel as well.

12. I should, at this stage, say something about the status of the evidence of Mathews more generally. The material filed by the applicant included a lengthy affidavit of Mr Michael Jaloussis, a solicitor who had the carriage of the matter for the applicant, which had annexed to it the exhibits tendered at the HREOC hearing. One exhibit (folios 195 to 197 of the affidavit) was an unsigned statement of Mathews which annexed a letter dated 13 March 1996 forwarded to CES. That letter contained a number of allegations by Mathews of sexual harassment by the respondent. At the hearing on 22 June 2000 in these proceedings there was a debate about the admissibility of folios 195 to 197 and an affidavit of Ms Z. I understood the evidence to be led by the applicant as demonstrating (as described by counsel), inter alia, "the uncanny similarities of the way in which the [respondent] treated all three women [the applicant, Mathews and Ms Z]". Thus, I understood the evidence to be relied on to establish, amongst other things, the respondent's tendency to act in a particular way. Counsel for the respondent appeared to share this understanding and raised s 97 of the Evidence Act1995 (Cth) in opposition to the tender of the evidence. I ruled (transcript p 38) that the affidavit and statement should be admitted subject to determining whether notice had been given as contemplated by s 97(1)(a).

13. The hearing of the matter did not conclude during days fixed in June 2000 and Ms Mathews actually gave evidence on 21 August 2000. She was examined in chief and cross-examined on the assumption that her statement (and the annexed letter of complaint) were in evidence.  Indeed counsel for the applicant asked her whether the matters that were set out in a letter were true and correct.  She said they were.  On one view, this evidence was led to prove that the harassment alleged in the letter (and other incidents set out in it) had, in fact, taken place.  One incident described in the letter was a request made to Mathews when she was initially interviewed by the respondent to wear to work "a short skirt with no panties and a see through blouse".  On 23 August 2000 (after the respondent had given evidence and had been cross-examined) counsel for the respondent sought to ask Peacock questions about what the respondent had said at the initial interview of Mathews (Peacock had been present) about work clothing.  Counsel for the applicant then made it plain that she did not rely on Mathews’ written complaint (and, I infer, answers to questions concerning the truth of its contents) as proof that the matters complained off had, in fact, occurred.  On that basis counsel for the respondent withdrew an application to ask Peacock questions about what was said at the initial interview.  When explaining the limited use the applicant intended to make of the written complaint (that a complaint had been made and what the contents of the complaint were), counsel for the applicant drew attention to the fact that she had not cross-examined the respondent about any of Mathews' allegations.  In view of these remarks I propose to treat folios 195 to 197 as proving no more than a complaint was made by Mathews and what the complaint contained.

1. I return to the evidence concerning the conversation at the Water Wheel Hotel. Mathews' account is, in part, contained in a letter dated 23 October 1996 to HREOC responding to a letter of the respondent.  She also gave oral evidence about this incident.  Mathews had approached Peacock at the hotel to ask if she would help the applicant and her with their complaints against the respondent.  Mathews had lodged a complaint with HREOC on the same day as the applicant, namely 8 May 1996.  Mathews accepted in cross-examination that she told Peacock that she was taking the respondent to court on sexual harassment charges and that there was "money in the court case".  She also accepted that she told Peacock that there would be money in it for her if she helped the applicant and herself though at a later point appeared to resile from that evidence.  She denied mentioning a figure of $4000.  I should note that Mathews also gave evidence that she had been initially approached by the applicant but denied, in substance, that they collaborated in preparing their complaints in so far as the contents were concerned.  She said the applicant had typed out one version of her complaint (the letter to HREOC of 8 May 1996).  In the letter of 23 October 1996, Mathews commented on what Peacock said about the truth of Mathews' allegations (that every part was true) and what she said about wanting to help but been scared of the respondent.  However the letter is cast in terms that makes it unclear whether, on Mathews' account, Peacock said these things directly to Mathews at that time.

2. The import of Mathews' evidence was that after speaking to Peacock she was approached by Griffin.  There was a discussion about whether Mathews had put in a "statement against Dr Nanda".  Griffin indicated that he had "never been sleazy towards her".  Mathews indicated that the respondent would not be stupid enough to do anything (against Griffin) because she had a case against him.  Griffin indicated that the respondent did not want Mathews involved because he was going to drag it through the courts and his view was that the applicant was influencing Mathews.  Griffin asked Mathews why she was doing it and she replied that she did not think the respondent should be able to get away with what he had done.  Mathews denied saying that she wanted to "get out of this business with [the applicant]".  Mathews then left Griffin.

3. Griffin's evidence about this conversation with Mathews accorded with Mathews' evidence in some respects but not others. Griffin accepted that she told Mathews that the respondent had not been sleazy towards her, that she asked Mathews why she was doing it and that Mathews said she thought the respondent should not be able to get away with what he had done.  Griffin did not accept the other aspects of the conversation as recounted by Mathews.  Griffin said Mathews had said she wanted to get out of the business with the applicant.

4. Peacock's account was that Mathews approached her and indicated that she should join the applicant, that they were going to get good compensation from the respondent for sexual harassment and that she mentioned a figure of $4000.  Peacock denied saying that Mathews' complaints were true or that she was scared of the respondent.

5. For present purposes, it is unnecessary to resolve which of the accounts should be preferred as to some matters of detail.  It was common ground that Mathews asked Peacock to help her and the applicant in furtherance of their complaints against the respondent and, in the context of making that request, indicated that there would be money in it for Peacock.  It is also clear from Mathews' evidence that she and the applicant worked comparatively closely together, at least in the middle to latter part of 1996, in pursuing their complaints against the respondent.  Mathews' motives were, in my opinion, mixed.  There is no doubt that one objective was to obtain compensation from the respondent.  However the statement to Griffin that she did not believe the respondent should be able to get away with it is consistent with the pursuit of complaint also for reasons of principle as well.  It is true that Mathews withdrew her complaint in early 1997.  However I am satisfied that she did so for legitimate reasons which included that she received advice from solicitors that led her to believe that her exposure to costs did not justify the pursuit of the complaint.

6. I have little doubt that the applicant's motives for making and pursuing her complaint, in common with Mathews, also included obtaining compensation from the respondent though that was never directly put to her in cross-examination. It was, however, a matter relied on by counsel for the respondent to discredit the applicant in final submissions and reference was made to evidence that suggested, indirectly, that this was what motivated the applicant. However even accepting that this was one matter which motivated the applicant, it is, in my opinion, a matter that does not do any real damage to the applicant's credit. The law may afford a person an opportunity created by the unlawful conduct of another person to obtain compensation from that person. This is recognised in the statutory scheme in the S D Act which confers a right to make a complaint which can lead to the remedy of compensation.

7. Whether I should ultimately accept or reject the account of the applicant and reject or accept the evidence of the respondent (and the evidence of the witnesses supportive of the respondent's account including the evidence of Peacock) involves a more detailed consideration of the evidence of the witnesses and the documentary evidence.  In final submissions counsel for the respondent and counsel for the Commonwealth referred to several matters emerging in the applicant's evidence concerning her credit.  Of some significance was the evidence of the applicant concerning diaries she said she kept during the period of her employment with the respondent in which she recorded many of the incidents set out in her written complaint to the CES and later HREOC.

8. In evidence is a 1995 diary with a day to a page (about A4 in size).  It is a diary that relatively clearly, in my opinion, the applicant kept during that year (for example it contains a note of when she started working for Forgacs in early 1995 (20 February 1995)) though on some of the pages for days in February the day and year has been altered to create an ad hoc diary for February 1996.  On the pages for 16, 17, 18, 19, 20, 21, 24, 25, and 26 October 1995, 4 and 9 November 1995 and on the reconstructed pages for 7, 8, 12, 13 and 14 February 1996 there are entries in a code constituted by symbols in substitution for letters of the alphabet.  A translation of the code is set out on a page towards the beginning of the diary.  It is to be recalled that the first incident recorded in the written complaint to HREOC for which a date was given was 18 September 1995.  The first eight entries in the diary in code (that is, before the entry on 26 October 1995) do not describe incidents of alleged sexual harassment.  Indeed the first six entries in code simply record the time the applicant arrived at work.  Thus there is no entry in code (or at all) in this diary relating to the incidents involving sexual harassment which the applicant said occurred on 18 and 20 September 1995 and 16, 17, 19, 21 and 23 October 1995 even though there is, for some of these days, an entry in code about the time of arrival at work.  However there is an entry in code concerning each incident particularised in the written complaints (and given a date) following (and including) the incident on 26 October 1995.

9. Several obvious questions arise about this diary and evidence concerning it, given that it might constitute a contemporaneous record of the incidents of sexual harassment and a source of information when the first written complaint was prepared in March 1996.  The first is why there are no entries in the diary concerning the first seven dated incidents of sexual harassment (as well as the trouser sewing incident which occurred early in the applicant's employment) even though there are some entries in code on the days in question.  The second is what was the source of the information concerning the incidents on these days used by the applicant in compiling the complaints.

10. In her evidence the applicant said she used the code (which had been used by her and friends at school) to ensure the respondent did not understand what the entries meant.  The diary was taken by her to work and she feared the respondent might look through it.  This explanation is plausible (particularly given other evidence about a letter the applicant wrote to a young man which is discussed later) though it is difficult to understand why the entries concerning late arrival were in code.  However the applicant was not asked to explain why they were.  The applicant was cross-examined about the absence of entries in code for the first seven dated incidents of sexual harassment in her complaint.  She said she had maintained another pocket diary which contained information about those incidents and to which she had recourse when preparing her first written complaint (to the CES in March 1996).  It was a 1994 pocket diary used to make entries for days in 1995 (in the same way she used the larger 1995 diary to make entries for days in 1996).  The applicant said she had thrown out the pocket diary though said she could not recall why she did so.  She said this occurred when she was cleaning out her room.  She accepted that she was careful to keep the 1995 diary because it might be relevant at some stage.  I accept that it is curious that, on the applicant's account, she retained one diary but not the other given that both would have been of at least similar importance.  However the critical question is whether her evidence concerning the existence of the pocket diary and what it contained is false.

11. In cross-examination, counsel for the respondent sought to establish that it was false by pointing out that the existence of this diary was raised only in cross-examination and was inconsistent, if not at odds, with evidence given in chief and evidence given to HREOC.  It is true that the existence of the pocket diary was not adverted to in evidence in chief.  However the questions asked of the applicant by counsel were directed to the 1995 diary as a prelude to its tender.  The 1995 diary was tendered as a contemporaneous record of some the events in the written complaint and it was necessary to ask questions about it to found the tender.  The existence of the pocket diary might have been raised during the applicant's evidence in chief, though there was no forensic imperative that required its existence to be raised.

12. In her evidence before HREOC (given in April 1999) the applicant was asked questions about a diary.  It is to be recalled that there was no contradictor in those proceedings as the respondent did not appear to contest them. The applicant said she kept a diary of things that were said and done.  She agreed with her counsel that she had set out the dates in her statement because she had had an opportunity to look at the diary.  She then said the diary was in her bedroom at home.  I accept that this evidence could reasonably be viewed as implying that the applicant had one diary that she still retained.  Later evidence given to the Commissioner could also reasonably be viewed as implying that there was one diary.  However the applicant later said in response to a proposition put by the Commissioner that the first entry in the diary would have been for 18 September [1995] and that it was in code.  It is probable that the applicant would have then known that the 1995 diary contained no such entry.  Given that the proceedings were not contested, there was no particular reason for the applicant to lie to or mislead the Commissioner about that matter.  Notwithstanding what might be inferred from her earlier evidence to HREOC, this latter evidence is consistent with the existence of a diary which had contained entries concerning the first seven incidents of harassment (including the one on 18 September 1995).

13. When confronted with this evidence (to the Commissioner) in cross-examination in these proceedings, the applicant explained that she understood the questions to relate in general to the diary she had kept when working for the respondent.  Were it not for one other piece of evidence, I would be somewhat sceptical about the evidence the applicant has given in these proceedings on this question of what she had earlier meant and whether, in fact, there had been another diary.  It is to be recalled that in the letter dated 8 May 1996 to HREOC, the incidents of sexual harassment were set out in two parts.  The first part contained a list of incidents that are said to have occurred on nominated dates.  The second contained another list of incidents occurring at unspecified times (other than as to the trouser sewing incident which was said to have occurred during the early weeks of her employment).  The evidence of the applicant in these proceedings was that the first part of the statement prepared in March 1996 and given to CES had been compiled by reference to both diaries.  She did not have recourse to the diaries when preparing the May 1996 letter to HREOC because "I'd already translated from them ... to the CESs complaint".  That is, the transposition of the information from the diaries into letter form had taken place in March 1996 and had been copied in May 1996.

14. In the letter of 8 May 1996 (set out above in par 18) the applicant said in the second paragraph (as a prelude to what I am describing as the first part) that she clearly recalled the following incidents and would "begin my statement with excerpts from my diary".  It is highly unlikely, in my opinion, that the applicant would have commenced a letter to a statutory body which was likely to investigate the matters referred to in the letter with a statement that would have been false (with the attendant risk that the falsehood would be exposed) if there had been no diary entry concerning each incident.  To make such a false statement would have been a foolish and unnecessary thing to do.

15. Moreover if, contrary to the applicant's evidence, there had been no pocket diary, then it would appear to follow, on the respondent's thesis, that the applicant simply made up the dates of the first seven incidents, first set out in the statement of March 1996, which extended back six months.  It is not in issue that there were occasions when some of what is described in the first seven incidents actually occurred (the discussion of the speeding fine, the demonstration of the ECG and the discussion of the exchange of alcohol for sexual favours) though the context and detail was in issue.  It is highly improbable that the applicant could have recalled, in March 1996, the dates on which events occurred up to six months earlier including the events about which there was some common ground.  As just noted, one would be driven to conclude that, in the absence a written record of when the events occurred, the dates were simply made up by the applicant.  It is difficult to comprehend why the applicant would have followed such a course particularly when no dates were given for the incidents in the second part of the complaint.  It may be thought that it was done to give an air of authority or veracity to the complaint.  However, in my opinion, it is far more likely that the complaint as originally framed in March 1996 and later reproduced in May 1996 was based, as the May 1996 letter said, on excerpts from a diary.  I am satisfied that the applicant had two diaries in which she entered contemporaneous notes concerning events at the workplace which included notes about the conduct of the respondent.  This finding does not exclude the possibility that the entries themselves were false.  Whether they were requires further consideration of the evidence given by the various witnesses and other documentary evidence.  However the contemporaneous notes (at least as recorded in the 1995 diary) are themselves credible evidence of the events referred to in them.

16. Before embarking on a consideration of the evidence more generally, it is convenient to discuss some of the evidence of the respondent.  It is evidence which, in my opinion, provides some illumination of where the truth lies.  I consider four matters.

17. The first matter concerns an occasion on which a chocolate penis the respondent purchased came into the possession of a young female receptionist who was then working for him.  I am conscious that the receptionist, Cooper, gave evidence in this matter but that the evidence was led only in the agency proceeding.  It is not evidence in the employment proceeding.  The following discussion is based only on the evidence given by the respondent in cross-examination by counsel for the applicant and in re-examination and answers to a number of questions I asked.  This was evidence given in the employment proceeding.

18. The respondent’s evidence was as follows.  He acknowledged he was giving his evidence about this incident after he had heard Cooper give evidence about it. He went to the supermarket in 1984 or 1985 (he was not sure exactly when) and someone sold him some chocolate penises.  It was Easter time.  He came back to the surgery after lunch.  He then had "it" all wrapped up.  It is not clear whether this part of his evidence is a reference to one or several chocolate penises even though he spoke of purchasing chocolate penises in the plural.  Cooper, the receptionist, wanted to know what was in the packet.  He refused to show her.  She then persuaded him to let her have a look.  He did let her have a look.  Cooper then asked the respondent to sell "it" (I understand this to be a reference to one and not several chocolate penises) as she wanted to give it to her girlfriend.  The respondent said he "very reluctantly sold it to her".  The respondent then spoke of his understanding of what then happened, namely that Cooper took the chocolate home and put in the fridge where Cooper's mother saw it.  The mother asked what it was and Cooper said that the "Doctor gave it to me".  The mother came to the surgery the following day or the day after.  She told the respondent that she wanted take her daughter away from the surgery and that she was not very happy with what he had done. 

19. The respondent then said in evidence that a complaint was made to the CES but that one or two days later Cooper confessed to the mother that it was not the respondent's fault.  Cooper said it was her who forced the respondent to sell it to her.  As a result the mother withdrew the complaint the next day.  The respondent later said that he did not buy the chocolate penis at a supermarket but at Darrell Lea.  In re-examination he said he had bought them for two of his good friends who were medical practitioners.

20. It can be inferred that Cooper was a young woman at the time of this incident having regard to the relationship between Cooper and her mother evident from the events described by the respondent.  I find it difficult to accept that an object of the type described by the respondent would have been sold either by a supermarket or at Darrell Lea.  However, more significantly, I also find it extremely difficult to accept that a young female employed as a receptionist would make, let alone persist in, a request to a medical practitioner who was her employer to open a packet (when the employee did not know what was in it) that the practitioner brought back to the surgery.  I also find it extremely difficult to accept that even if (in the unlikely event) the persistent request was made, a responsible medical practitioner and employer would open the packet (knowing what was in it) and show its contents to a young female receptionist.  I also find it extremely difficult to accept that a responsible medical practitioner and employer would then sell the contents (a chocolate penis) to the young female receptionist because she said she wanted buy it.  In my opinion this evidence involves a kernel of truth, namely that the respondent brought about a situation where Cooper had in her possession a chocolate penis he had provided to her which Cooper's mother came to know about and which led to Cooper leaving the respondent's employment and a complaint being made.  The remainder of the evidence of the respondent is, in my opinion, a transparent fabrication designed to explain an incident about which evidence was given in the agency proceeding which the respondent heard being given.  This evidence of the respondent reflects adversely on his credit.

1. I should conclude my discussion of this question by noting one further matter. At one point, counsel for the respondent submitted that his client had been prejudiced because the evidence of Cooper was led against the Commonwealth only and he did not cross-examine Cooper. Had he known the respondent would be asked questions about Cooper, he could have cross-examined Cooper to have her corroborate his client's version of events. However the evidence of the respondent on the Cooper incident was elicited by counsel for the applicant to test the respondent's credit. At least in the ordinary course, counsel for the respondent would have had some difficulty in demonstrating that he could elicit other evidence from another witness for the sole purpose of demonstrating that his client was a credible witness. Prima facie such evidence is not relevant: see s 102 of the Evidence Act1995 (Cth), and I doubt that it was intended that s 103 of that Act would allow such evidence to be led.

2. The second of the four matters concerns a letter written by the applicant to a young man.  In his letter of 25 September 1996 to HREOC, the respondent effectively set out his defence or answer to the allegations made by the applicant in her letter to HREOC of 8 May 1996.  One of the allegations (set out above) concerned an incident on 13 February 1996 in which the respondent discussed with Sarroff (and then the applicant) him attending a massage parlour and having sex with a woman there.  In his September 1996 letter the respondent denied this incident and denied using the language the applicant said had been used.  The respondent concluded his answer or defence concerning this incident by saying:

   “On the other hand, this is her language.  Please refer to the pornographic letter she wrote to a ‘boyfriend’ in my time and on my stationary.  I will send this on request.”

3. For my part, I see no logical connection between the "pornographic letter" and the allegation.  However, the significance of what the respondent wrote was that it revealed he had, in September 1996, a personal letter (or a copy of it) written by the applicant during her employment with him which had concluded over six months earlier.  There is evidence that suggests it was written in November 1995 (notes in code in the 1995 diary of the respondent indicate she was corresponding with the young man at that time) though the evidence of the respondent was that he saw the letter in January 1996.  When it was written is not presently material.

4. A photocopy of the personal letter is in evidence.  It contains, in part, a quite explicit description of how the applicant was sexually aroused by seeing the young man, a description of how and in what way the applicant would like to have a sexual encounter with him and an expressed desire to know whether and in what way the young man was being sexually aroused by reading the letter.  In an affidavit sworn on 12 October 1999, the respondent explained how a copy of the letter had been in his possession.  He annexed a copy of the letter to the affidavit.  He said that he was in his surgery, heard a bang outside and left the surgery to provide medical attention for what he believed might have been a motor vehicle accident. When he returned to the surgery he noticed the letter on the applicant's desk and that it was on his letterhead.  He noted the letter did not relate to any part of the applicant's employment duties.  He made a copy of the letter but did not raise it with the applicant.  His explanation for copying the letter was:

   “I did not want to embarrass the girl but I decided that it would be prudent to take a copy should I become aware that she was continuing to write personal letters on my letterhead.”

5. The copy in evidence is a photocopy constituted by two sheets of paper.  The letter commences on one page which appears to be plain paper and concludes on the second page.  At the head of the second page is letterhead of the "TERRACE MEDICAL CENTRE".  Beneath that description of the business are the names of two medical practitioners (not the respondent and his wife but the medical practitioners from whom they bought the medical practice) and an address of the practice which was not then the current address (it was an address two doors down the street).

6. There was an issue about what paper the letter had been written on and how it came into the possession of the respondent.  I have already described what the respondent said were the circumstances in which he saw and copied the letter. As to the physical form of the original letter, the import of the respondent's evidence was that the letter was on paper as I have just described it though on one but not two sheets (that is, on a single sheet which had letterhead on one side but not on the other).  In a letter dated 23 October 1996 to HREOC, the applicant said (as part of a general response to the 25 September 1996 letter of the respondent) the letter had been written by her in her lunch hour on "his stationary that I retrieved from the recycling bin".  As to what happened immediately after she had written the letter, the applicant said she saw the letter on the photocopier even though after writing it she had placed it in her handbag.  She noticed her handbag had been moved.  A week later she found a photocopy of the letter amongst the respondent's medical books. She ripped up the copy.  In an affidavit of 31 October 1999 the applicant denied that the letter had been on the letterhead of the Terrace Medical Centre.  This statement was made by the applicant with knowledge of the form the copy annexed to the affidavit (of 12 October 1999) of the respondent took (that is, it had a letterhead referring to the "TERRACE MEDICAL CENTRE").  In cross-examination the applicant said that the letter was written on stationery provided by a representative of a drug company.  The paper had come from a pad which was kept in a storage cupboard.  The clear import of her evidence was that at the top of the pages of the pad was promotional material of the drug company.  I will refer to it, as counsel for the applicant did in cross-examination, as letterhead of the drug company.

7. During cross-examination the applicant agreed with a proposition put to her that the account given in cross-examination was "completely different" to the account she gave in her letter of 23 October 1996.  For my part I do not view them as completely different.  During cross-examination the applicant used the word stationery to describe paper provided to the surgery by the drug company.  The use of the word in this way is unexceptionable and consistent with its ordinary meaning.  It is the same description given by the applicant in the letter of 23 October 1996.  It is true that in that letter the applicant spoke of "retriev[ing the stationary] from the recycling bin" and in cross-examination spoke of it having come from a storage cupboard where, it would appear, pads given to the surgery by various sales representatives were stored.  It is not a perverse use of the language to describe such a repository as a "recycling bin". Agreement to the proposition that her evidence was "completely different" then led the applicant to agree that when she wrote the 23 October 1996 letter to HREOC she had no recollection of writing letters on letterhead of the drug company.  It also led the cross-examiner to suggest that her oral evidence that it had been drug company letterhead was a fabrication, a lie and a false allegation that the respondent had knowingly falsified a document.

8. This cross-examination took place towards the end of the second day on which the applicant was cross-examined.  By then she had broken down distressed on several occasions.  During the cross-examination and before she agreed to these propositions, it was suggested to her that she was lying.  In my opinion, the evidence of the applicant was credible evidence notwithstanding the concession (which I do not believe should have been made and was made to oblige the cross-examiner) that her oral evidence was "completely different" with what she had written earlier.  It is true that the applicant had not mentioned earlier that the paper on which she wrote the personal letter contained the letterhead of a drug company but nothing, in my opinion, turns on that particularly when she denied in her affidavit of 31 October 1999 that the letter had been on Terrace Medical Centre letterhead which was the fact being asserted by the respondent.

9. On the other hand, the evidence of the respondent does not have the ring of truth to it.  It would be most extraordinary, in my opinion, for an employer in a workplace the size of the surgery, to photocopy a personal letter which was on old letterhead (on the respondent's version, it was old letterhead of the practice run by the doctors who sold it to respondent and his wife at a different address) and say nothing to the employee because it would provide the foundation for later rebuking or disciplining the employee if there was further use of letterhead of the surgery at some time in the future.  Moreover while I make no finding that the photocopy annexed to the affidavit of the respondent has been tampered with, it contains a line through the opening salutation ("Dear Aaron") which cuts of the top of one of the letters (the "D") in a way that would be consistent with the top of the letter having been masked or covered over during photocopying.  I refer to this to indicate that I reject the photocopy annexed to the affidavit of the respondent as evidence of sufficient weight to displace the oral evidence of the applicant about the form of the paper on which she wrote the letter.  I accept the evidence of the applicant concerning the circumstances in which the personal letter was written, the type of paper it was written on and the circumstances in which it was copied and the copy found.

10. In my opinion, the respondent's account of this incident is false and reflects adversely on his credit.  It may be that the respondent’s motives for making a copy (indeed probably making several copies of the letter) related to its contents.  That is, it constituted a graphic and titillating revelation of the sexual fantasies of a young woman though, it must be accepted, that this was never put directly to the respondent:  see Flower & Hart (a firm) v White Industries (Qld) Pty Ltd (1999) 87 FCR 134 at 148.

11. The third matter concerns a joke the respondent concedes he told.  One of the incidents particularised by the applicant in her letter of 8 May 1996 was an event on 17 February 1996.  It involved the respondent asking the applicant whether she would go to the police if, in substance, he raped her.  It is a matter recorded in code in her 1995 diary.  In his letter of 25 September 1996, the respondent said that the substance of the incident had been embodied in a joke the respondent had told "another friend".  The storyline of the joke was that an employer (a male) asked his employee (a female) if she would report him if he raped her.  After the employee said she probably would, the employer said he would go to jail, the office would be closed and the employee would be out of a job.  The apparent punchline was that the employee then said, "Shit!  I didn't realise that".  The respondent then said in his letter that after telling the joke "we all burst out laughing".  He then said in the letter "Remember this is in private.  She came in on some pretext, heard it and twisted it around and made it as if it was said to her with all the spicy bits".  The respondent added in his affidavit of 12 October 1999 that the joke was told to Mr and Mrs Richards.  Mrs Richards gave evidence in an affidavit dated 12 October 1999 that a joke to this effect had been told.  Mrs Richards was unable to say that the applicant was present or near by.  In an affidavit of the same day, Mr Richards referred to "conversations concerning employers and employees and whether complaints would be made by a female employee" but was not able, in cross-examination, to recall any jokes concerning rape by an employer.  I accept, as Mrs Richards said, that the respondent recounted a joke of the type he spoke of in his letter and about which he later gave evidence.  However what it really illustrates is that the respondent cannot claim the high moral ground that, on many occasions, he sought to take during cross-examination when he rejected the suggestion that he had used certain language or spoke of certain matters because to do so would have been out of character.  The joke is base and now accepted by the respondent to be tasteless.  It is not at odds, in my opinion, with an attitude to women and sexual relationships consistent with the allegations made against him by the applicant.  Moreover it is not a large step to conclude that a person who knew of such a joke, told it to friends, and thought it was funny would at some other time use its contents as a vehicle to make a lewd comment to a young female employee either because the person thought doing so was itself funny (or perhaps even titillating) or because it was part of a crude course of conduct designed to secure or elicit sexual favours from the employee.

12. The fourth and last matter concerns what I have earlier described as the trouser sewing incident.  One of the matters complained of by the applicant in her letter of 8 May 1996 to HREOC (set out above) was an incident in the early weeks of her employment when, on her account, she was told to sew a button back onto the respondent's trousers.  On the applicant's account set out in the letter it was a button, she knelt on the floor to sew it on and, at the time, the zipper of the pants was down.  In her evidence before HREOC, the applicant said she was asked to sew the button on but assumed the respondent would bring the trousers in the next day. However he called her into the back surgery and produced a small sewing kit, undid his fly, stood there and asked the applicant to kneel on the ground and sew his button back on.  She did so.  She described the incident as pretty horrible and said it made her feel terrible and dirty.  In response to a question from the Commissioner, the applicant said the missing button was at the top of the zipper.  He also said that she initially sat on the arm of a chair to start but was asked by the respondent to kneel on the ground to sew on the button.  It took a minute or two to sew the button on.  When she was doing it, the applicant's head was about level with the respondent's waist.

13. During cross-examination on 23 June 2000 in these proceedings, the applicant rejected the suggestion that what she had been asked to sew back on was a metal clip "over towards the right hip".  She did, however, concede that she had a little doubt about that matter and conceded that she had some doubt (at the time of cross-examination) about the accuracy of her recollection.

14. The respondent's first account of this incident was in his letter dated 25 September 1996 (approximately a year after the event) to HREOC.  The respondent said that the clip had accidentally broken and the applicant offered to sew it back on.  He said that the clip was on the "far right hand side away from the main button or zipper".  In the letter he offered to produce the trousers. He said he had his pants firmly on (in her written response dated 23 October 1996 to this letter, the applicant repeated her earlier assertion that a button had been involved and the zipper was undone and took issue with whether the "button" had been on the far right hand side of the pants).  In cross-examination in these proceedings, the respondent said that the clip had broken in the sense that the top part of it had broken so that it did not hold.  The respondent said the flap from the pants was coming out and was flapping.  He said it did make the pants "loose a bit".  He said he was looking for a pin and the applicant offered to sew it.  He indicated that he was quite capable of sewing it himself but he did not on that occasion because the applicant offered to do it.

15. During the re-examination of the respondent a pair of trousers was tendered which he identified as the trousers in question.  They had not been shown to the applicant during her evidence so that she could say whether they were the trousers.  The trousers have a zipper fly.  They also have a button approximately 4.5 cm to the right of the fly (looking at the trousers from the external front).  Approximately 8.5 cm to the left of the zipper is a small flat metal bar on the waistband.  The waistband to the right of the fly continues past the fly to the left as a flap and on the back of that flap is a hook which hooks behind the bar to secure the flap against the left-hand side of the waistband.  It is approximately 15 cm from the metal bar to the centre of the fly (the vertical midpoint of the fly).  The metal bar is approximately 4 mm wide and 25 mm long (top to bottom).  At the top and the bottom of bar is a hole to enable the bar to be sewn onto a garment.  On the trousers in evidence the bar has been resewn in a fairly crude way.  The top hole has been resewn twice (once in a light coloured thread and later in a black thread which overlaps the white) and the button hole once (in black thread).  In his evidence, the respondent said that the applicant sewed the top of the bar and added later in his evidence that he thought that she had sewed the bottom as well because it was very loose.  In describing how the applicant sewed, the respondent indicated that she placed her left thumb down behind the waistband (this would have meant the end of her thumb was of the order of 10 to 12 cm from the vertical midpoint of the fly).

16. If the trousers tendered by the respondent at the hearing in August 2000 were, in fact, the trousers he had been wearing sometime probably in September 1995, then the respondent’s account as to what was sewn on is plausible.  The button at the top of a fly appears not to have been resewn (other than perhaps professionally) while the metal bar plainly has been.  Moreover the first written account of this incident made by the applicant (the March 1996 statement - the incident is not referred to in the applicant's 1995 diary nor did she suggest that it was one of the matters recorded in her pocket diary to which a date was given in the statement) was made almost six months after the event.  It is quite possible that by then the applicant's recollection was imperfect and she recalled sewing on a button whereas, in fact, it had been the metal bar.  Understandably she thereafter repeated that version of the event.  Indeed, as earlier noted, she conceded in cross-examination she had some doubts about the accuracy of her present recollection (June 2000) of the incident (about the question of whether she offered to sew it back on or was asked).

17. Though in one sense it is a minor matter, of some importance, in my opinion, is where the sewing kit came from.  The respondent was cross-examined about it:

    “But you were happy to accept her invitation to sew it back on?--- She knew we had a sewing kit in the surgery so she said---
    Well, I can I just---?  Yes, sorry.
    You then went into the second room of surgery?--- Yes.
    The kitchen area?--- Yes.
    You were there for a few minutes?--- Yes.
    And you came out and you produced a small sewing kit?--- I didn't have-it was in the second room anyway in the draw so she was sitting in the coffee room and she said: look, it would only take 2 minutes.  So I said you don't have to but if you want to do it thanks very much.”

18. The respondent was adamant that this was the conversation that took place even though it had not been referred to, in these terms, in his letter of 25 September 1996 to HREOC nor his affidavit of 10 October 1999.  About 10 questions later it was again put to the respondent that he had collected the sewing kit as one of several things he did, and he did not deny or put that assertion in issue.  The applicant was not asked in cross-examination whether she knew, at the time of this incident, that there was a sewing kit in the surgery.  The applicant first said that the respondent had got the kit in her letter of 8 May 1996.  That fact was not put in issue by the respondent in his response of 25 September 1996.  In my opinion, it is more likely, having regard to the totality of this evidence, that the respondent produced the sewing kit.  It is also more likely that this occurred in a context where the respondent asked the applicant to sew something back onto his trousers, he knowing there was a sewing kit in the surgery, and she did not volunteer it (her doubts about this matter during cross-examination evidenced, in my opinion, an honest (and understandable) response six years after the event).  In my opinion, the account of the applicant is more credible and I accept it.  I have one reservation and that is whether the applicant was asked to sew back on, and did sew back on, a button or the metal bar.  While I do not find affirmatively that the trousers tendered by the respondent were the trousers in question, they do constitute evidence that raises sufficient doubt in my mind about whether the applicant sewed on a button or not.  However even accepting that what was sewn on was the metal bar, it occurred in circumstances where the respondent's fly was open, the applicant was asked to, and did, kneel in front of the respondent to sew on the metal bar and to do so, had to insert her thumb behind the waistband no more than 15 cm (or thereabouts) from the vertical midpoint of the respondent's fly (and, in all probability, his genitals).

1. It is necessary now to consider whether the Commonwealth (through the CES) permitted the respondent to discriminate against the applicant in the way just discussed.  At the time the applicant was placed in employment with the respondent, the CES knew (in the sense that from time to time officers of the CES had been informed) that several young women placed in employment with the respondent had complained of having been sexually harassed by the respondent in a way that would apparently constitute discrimination on the grounds of the employee's sex.  While none of the complaints were investigated or investigated to finality by any other agency or body, the CES did not know whether, and in my opinion could not have been satisfied that, the complaints were not of substance.  The frequency and/or seriousness of the complaints were such that the unusual step was taken of creating a sensitive information file for the respondent in relation to the Greta surgery.

2. There is no evidence to suggest that prior to the applicant's employment and subsequent complaint, the CES required the respondent to take any steps that might avoid further discrimination on the grounds of sex involving sexual harassment.  Indeed the evidence suggests no such steps were taken.  All that appears to have happened (other than opening the internal sensitive information file or register) was the suspension of services to the respondent for a period in 1985 after Cooper made her complaint and before it was withdrawn from investigation by the anti-discrimination committee.  While the general policy of the CES may be, as discussed earlier, to require that safeguards be put in place at the workplace, no evidence was led to show this had occurred in relation to the respondent and the documentary evidence sustains an inference that it was not.  That is, there was no record of any communication to the respondent requiring him to take any action.  Moreover the Commonwealth did not endeavour to elicit from the respondent evidence that he had been asked to take such steps by the CES and had satisfied the CES that he had taken them.

3. It is probable that none of this history was known by the caseworker at the Newcastle branch who facilitated the employment of the applicant with the respondent.  That is because the employer code for the respondent at his Raymond Terrace practice was not linked to the information, apparent on his computerized record for the respondent as an employer in the Greta practice, that would have alerted the case worker (or anyone else in either the Newcastle or Hamilton branch) that the respondent might be a problem employer.  By problem employer, I mean an employer for whom a sensitive information file had been created.  The existence of that file would have been apparent only if the Greta employer code was used.

4. Can it be said, in these circumstances, that the CES placed the applicant in employment having reasonable grounds for believing that there was a material chance that the applicant was at risk of being discriminated against on the grounds of her sex through sexual harassment and permitted the unlawful conduct in the way discussed?  In my view, it can.  It must be accepted that there will be occasions when former employees will make quite unfounded complaints to agencies like the CES about former employers for a variety of reasons.  However, in the present case the number of complaints of sexual harassment (at the very least four) over almost two decades should have alerted the CES to the distinct possibility that any young female sent to work for the respondent was at risk of sexual harassment and being discriminated against on the grounds of her sex.  Indeed it did alert the CES in the sense that a sensitive information file was created in relation to the respondent.  However the records were maintained by the CES in such a way that the caseworker who facilitated the applicant’s employment did not know of the history of complaints.

5. However, the fact the caseworker did not know does not, in my opinion, lead to a conclusion that the Commonwealth did not permit the discrimination in the way being discussed.  The collective knowledge of officers of the CES can be treated as the knowledge of the Commonwealth:  see Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563 at 583 per Brennan, Deane, Gaudron and McHugh JJ. In some circumstances, the knowledge of individual employees or officers of a corporation cannot be aggregated in a way that alters the character of the knowledge. For example, a corporation does not act fraudulently where several of its employees (involved in the corporation's conduct) possess discrete pieces of information (by itself innocent information) which, if known to one employee, would evidence fraud. However, this is not such a situation. Moreover, the existence of the sensitive information file which gathered together much of the information about the respondent and was noted in a computer record would answer any suggestion that the knowledge of individual officers of the CES could not be aggregated. That is, the knowledge was already aggregated: see generally Re Chisum Services Pty Ltd (1982) 7 ACLR 641 and as to cases of fraud see Macquarie Bank Ltd v Sixty-Fourth Throne Pty Ltd [1998] 3 VR 133 at 144-145 and 160-162.

6. I am satisfied that the Commonwealth permitted the respondent to discriminate against the applicant on the grounds of her sex. In so doing, the Commonwealth is, by operation of s 105, to be treated as having discriminated against the applicant on the grounds of her sex.

   Compensation

7. The position of the respondent in the employment proceeding and the Commonwealth in the agency proceeding have, to this point, been considered separately for obvious reasons. I have concluded that each has engaged in conduct proscribed by the S D Act. However it is convenient to deal with the question of whether compensation should be awarded and in what sum against the respondent and/or the Commonwealth at the same time.

8. I first consider the evidence led on the question of compensation or damages.  It was evidence from the applicant, her mother, her aunt, Dr Kennedy and the counsellor, Pacey.  The applicant's evidence was that the experience working with the respondent had been traumatic.  She became withdrawn and frightened.  She was unable to sleep and put on weight.  She found it extremely difficult to cope with what happened and the experience affected her relationship with her partner, her family and her friends.  This evidence was corroborated by the evidence of her mother and aunt.  It was also corroborated by the evidence of Pacey who works as a counsellor with Relationships Australia.  She saw the applicant on five occasions in 1996 (18 September, 2 and 28 October, 18 November and 23 December).  Pacey made notes of the counselling sessions and, in her evidence in chief, summarised her impressions of the applicant as someone who was in quite a bad way and was extremely stressed, anxious, confused, upset and humiliated.  Her impression was that the circumstances did not change during the period of counselling.  Pacey conceded, and I accept, that there were a number of factors, other than the applicant's experiences with the respondent, that were impacting on the applicant's general sense of well-being and emotional state during the period of the counselling.  However Pacey's evidence over all is generally consistent with the applicant's account of the effect on her of the conduct of the respondent.

9. Dr Kennedy gave evidence that she first saw the applicant on 8 March 1995 and she last saw her on "the 23rd of the sixth of this year" (this appears to be a mistake given that she gave evidence on 22 June 2000).  It emerged in cross-examination that Dr Kennedy saw the applicant once (and spoke to her once on the phone) between September 1995 and 4 March 1996 and then saw her on 24 April, 20 September, 30 October 1996, 14 March 1997, 15 April, 11 August and 30 September 1998.

10. Dr Kennedy prepared a report on the applicant dated 11 September 1997.  In that report Dr Kennedy noted that the applicant first discussed with her the sexual harassment by the respondent at a consultation on 4 March 1996.  She recorded that the applicant then displayed symptoms of stress/anxiety and that when she saw the applicant on several later occasions, she exhibited various stress-related symptoms.  She also recorded that she saw the applicant on 20 September 1996 when she appeared still stressed and anxious and more depressed.  The applicant then said she was suffering from insomnia.  In her report Dr Kennedy expressed the view that she hoped many of the applicant's symptoms would resolve or would at least become manageable.  In her evidence in chief, Dr Kennedy expressed the view that more recent observations of the applicant suggested she was experiencing "a major depression".  During cross-examination a number of other factors impacting upon the applicant's sense of general well being and emotional state were raised with Dr Kennedy.  They included the applicant's father's increased alcohol intake, the death of the applicant's stepbrother in October 1995 and the applicant's mother's serious illness which had involved surgery.  Dr Kennedy accepted, and I accept, that these matters would plainly have influenced the applicant's emotional state.

11. I am satisfied that the conduct of the respondent had a significant and negative impact on the applicant and the effect lasted for at least two years.  While other significant factors were also impacting on her during this period and affecting her emotional state, the consequences of the conduct of the respondent were a significant extra burden that the applicant has had to suffer during a difficult period in her life.

12. A submission was made by the Commonwealth that the employment proceeding (and it appears this submission embraced the agency proceeding as well) was to enforce the determination of HREOC.  Accordingly, it was submitted, damages that could be awarded were limited to the damages awarded by HREOC, namely $15,100.  Not only is this submission contrary to the approach of Spender J in Aldridge v Booth at 21 (His Honour said: "In matters of this kind, the Federal Court pursuant to s 82 (2) has to make such orders as the Federal Court thinks fit" but not in ignorance of the determination of HREOC) and the observations of Lockhart J in Hall v A & A Sheiban Pty Ltd (at 244) but overlooks the clear trend of recent authority emphasising that the exercise of the judicial power of the Commonwealth is undertaken independently by the Courts (see par 105 above). In my opinion, the clear words of s 83A(2) that "the Court may make such orders (including a declaration of right) as it thinks fit" should be given full effect. That is, if the Court decides that damages should be awarded, it may award damages in a sum which differs from any sum that may have been awarded by HREOC.

13. I am satisfied that the conduct of the respondent had a significant effect on the applicant particularly having regard to her age and comparative vulnerability which is compensable by the award of $15,000 by way of damages.  To this should be added an amount of $100 for the counselling.  It is the same amount of compensation as was awarded by HREOC though, it must be accepted, assessed by me by reference to a more limited number of instances of sexual harassment.  However the more limited number would not, in my opinion, have had a materially lesser effect on the applicant than all the conduct particularised in the applicant's complaint.  While I have independently concluded that it is the appropriate amount, I have also paid regard to HREOC's determination in reaching the conclusion I have.

14. The applicant also sought aggravated damages having regard to the respondent's approach to the complaint and his failure to appear before HREOC.  Reference was made to Lyon v Godley (1990) EOC 92-287 concerning the awarding of such damages and the approach to be adopted. It appears to have been accepted by Lockhart and French JJ in Hall v A & A Sheiban Pty Ltd (at FCR 239 and 282 respectively) that aggravated damages can be awarded to compensate for sexual harassment though by reference to a statutory formulation of the power to award compensation which differs from the section that now applies, namely s 83A(2). If anything, however, that section is cast in sufficiently wide terms as to put beyond doubt the Court's power to award such damages.

15. It is generally accepted that the manner in which a defendant conducts his or her case may exacerbate the hurt and injury suffered by the plaintiff so as to warrant the award of additional compensation in the form of aggravated damages: see Triggell v Pheeney (1951) 82 CLR 497; Coyne v Citizen Finance Limited (1991) 172 CLR 211. Such damages are not limited to libel proceedings. In Myer Stores Ltd v Soo [1991] 2 VR 597, for example, Murphy J at 606 considered that an award of aggravated damages was warranted in an action for false imprisonment where the defendant persistently insinuated throughout the trial that facts existed to justify the imprisonment, in particular that the plaintiff was guilty of shoplifting.

16. In the context of anti-discrimination law a wide variety of matters may affect the decision to award aggravated damages in any particular case. In Whittle v Paulette (1994) EOC 92-621 at p 77,306 the Queensland Anti-Discrimination Tribunal noted, when awarding damages, “that the first respondent was arrogant and aggressive in the witness box and insensitive to the effect of his treatment of the complainants”. In deciding not to award aggravated damages in Greenhalgh v National Australia Bank Ltd (1997) EOC 92-884, the Human Rights and Equal Opportunities Commission noted:

    “This is not a matter in which the respondent has refused to sit down and negotiate with the complainant. The respondent did make several offers of settlement to the complainant, some which included the payment of her costs to the date of the proposed settlement. Neither is this a matter where the complainant has been put to the expense and stress of having to establish the facts of her sexual harassment, nor the respondent's vicarious liability.”

17. In McIntyre v Tully (1999) 90 IR 9, Atkinson J of the Queensland Supreme Court, affirmed the decision of the Anti-Discrimination Tribunal to award aggravated damages to a plaintiff who had suffered added distress as a result of the defendant’s method of cross-examination. See also John v M G N Ltd [1997] QB 586 at 608 per Lord Bingham MR. That the proceedings are stressful for a plaintiff, however, is not in itself sufficient to attract an award of aggravated damages. The defendant must conduct his or her case in a manner which is unjustifiable, improper or lacking in bona fides: Triggell v Pheeney (1951) 82 CLR 497 at 514; Spautz v Butterworth (1996) 41 NSWLR 1 at 17-18 per Clarke JA.

18. The stress of litigation is well recognised: see, for example, the observations of Dawson J in Commonwealth v Verwayen (1990) 170 CLR 394 at 461. However in Coyne v Citizen Finance Limited (supra), Toohey J emphasised that a vigorous defence alone does not expose a defendant to the risk of additional damages. His Honour held, at 237, that:

    "It is not the case that every unsuccessful defendant must face the prospect of damages being increased, simply because the defendant has elected to defend the action. It is for the jury, properly directed in the circumstances of the case, to determine whether the defendant's conduct lacks bona fides, or is improper or unjustifiable, in the sense referred to in Triggell v Pheeney.”

19. In the present case, the applicant has submitted that it is appropriate to award aggravated damages on the basis of Dr Nanda’s approach to the complaint and his failure to appear at the hearing before the Commission.  I did not understand this submission to raise for consideration the cross-examination of the applicant.  It was, however, directed to the conduct of the respondent after the applicant's complaint was lodged with HREOC. There is limited information before me about why the respondent did not appear before HREOC.  Had he done so and failed in his defence of the complaint, he may have been more accepting of HREOC's determination.  Having failed before HREOC he elected to contest the matter in this Court when the applicant sought to enforce the determination.  While it was his legal right to do so, it occurred against a background where he had not appeared before HREOC.  Plainly the Commissioner took the view that the explanation given by the respondent for not being able to appear at the hearing dates on 12-15 April 1999 was of insufficient moment to warrant the grant of an adjournment.

20. I am satisfied that the resolution of the complaint of the applicant has been delayed, and delayed by a considerable period, by the conduct of the respondent and, in particular, his failure to participate in the proceedings before HREOC.  I am also satisfied that the applicant has suffered additional stress and mental anguish because of this delay for which she entitled be compensated by way of aggravated damages.  I propose to order that the respondent pay the applicant a further sum of $5000 as aggravated damages.

21. A submission was made by the Commonwealth that any sexual harassment that occurred was by the respondent who was, in the defined sense, the "respondent" (see s 4 of the S D Act) and, accordingly, the applicant could only obtain relief under s 81(1)(b) against the respondent and not the Commonwealth. "Respondent" is defined as:

    “‘respondent’”, in relation to a complaint, means the person who is, or each of the persons who are, alleged to have done the act to which the complaint relates”

    This submission fails to give full effect to s 105 which results in a person to whom the section applies being treated as having done the unlawful act of another. It is not suggested that the agency proceeding against the Commonwealth is not properly before the Court as an application capable of being made under s 46PO of the HREOC Act. That being so, then the Court has power under s 46PO(4) to make "such orders..… as it thinks fit [including] an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent": see s 46PO(4)(d).

22. In the application filed on 11 May 2000 in the agency proceeding, compensation was sought and s 105 was referred to as a section of the S D Act on which the complaint was based and under which the Commonwealth's conduct was said to be unlawful. Similar reliance was placed on that section in the original complaint dated 30 April 1998 to HREOC. There is no statutory inhibition, I can discern, which would prevent the Commonwealth being ordered to pay the damages, in their entirety, due to the applicant for the conduct of the respondent which is to be treated also as the conduct of the Commonwealth.

23. In the result, I have concluded that the applicant is entitled to $15,100 damages by way of compensation for the unlawful conduct of the respondent.  Both the respondent and the Commonwealth are legally liable to pay that compensation though the applicant cannot be compensated twice.  It is the respondent alone who is legally liable to pay the $5000 compensation by way of aggravated damages.  The parties did not address the Court on how such a result should be reflected in orders binding both the respondent and the Commonwealth.  They should be given the opportunity to do so.

    The role of the Commonwealth in the proceedings

24. It is appropriate that something be said about Commonwealth's role in these proceedings.  There is an expectation that the Commonwealth will conduct itself as a model litigant: see the discussion of Finn J in Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 at 196 and the cases his Honour cites.

1. It is to be recalled that the applicant applied for the consolidation or joint trial of the employment proceeding and the agency proceeding. The Commonwealth opposed the application.  At one point during the hearing of the application for consolidation or joint trial on 30 May 2000, counsel for the Commonwealth suggested it had no interest in the question of what, as a matter of fact, occurred between the respondent and the applicant.  On 2 June 2000 a solicitor from the Australian Government Solicitor spoke with my associate and indicated that agreement could not be reached about the Commonwealth accepting findings made about the conduct of the respondent for the purposes of determining the liability of the Commonwealth.  In the result, and as noted earlier in these reasons, I made orders on 5 June 2000 that the employment proceeding and the agency proceeding be heard together and that the evidence in one be the evidence in the other (with certain qualifications).

2. At a hearing on 19 June 2000, these orders were varied on the application of the Commonwealth.  The explanation given by counsel for the Commonwealth for the variation was:

   “...  if evidence is led in the Nanda case then that is evidence against Dr Nanda - evidence of the applicant against Dr Nanda and technically speaking the Commonwealth isn't entitled to cross-examine in relation to evidence that is led in the Nanda proceedings.  We are not a party to those proceedings and that is why we apply to have [the earlier orders varied] and put instead an alternate regime of trying to ensure that it is clear which of the applicant's evidence is in the Nanda proceedings and which of the evidence is in the Commonwealth's proceedings and which, if there is any, of the evidence is in both.”

3. When the joint hearings commenced on 22 June 2000 an issue arose concerning whether particular evidence was being tendered by the applicant against only the respondent or against the Commonwealth as well. That led to a discussion about whether it was necessary to prove, as against the Commonwealth, that the respondent had engaged in unlawful conduct. As a result of what was said by counsel for the Commonwealth, I gained the clear impression, and it appears counsel for the applicant also gained the same impression, that the Commonwealth wished to play no part in the contest between the applicant and the respondent in the employment proceeding concerning whether or not the respondent had sexually harassed the applicant. The position I understood the Commonwealth was taking was that it would not involve itself in the question of whether the respondent had engaged in unlawful conduct and would accept the Court's determination on that question. The import of what was said on behalf of the Commonwealth was that it would not be necessary for the applicant to tender, as against the Commonwealth, evidence led against the respondent to establish his unlawful conduct. In that context counsel for the applicant indicated she might nonetheless tender the evidence in both proceedings but I indicated, in view of what counsel for the Commonwealth had said, it was not necessary. The position I understood the Commonwealth was taking was an understandable one given that the Commonwealth was proposing to argue that whatever may be the liability of the respondent having regard to his conduct, it had no liability to the applicant under the S D Act. It was with this understanding, on my part, that the trial was conducted and various orders made about the reception of evidence against one or other of the respondents to the two proceedings.

4. Notwithstanding these events, at the conclusion of the trial, the Commonwealth sought to make detailed and extensive submissions in the employment proceeding and, in particular, submissions about who was to be believed in the factual contest between the applicant and a number of witnesses called in that proceeding including, obviously and most importantly, the respondent.  This was in relation to evidence that had strictly not been tendered against it. Those submissions were made against the background where counsel for the Commonwealth did not challenge the applicant's evidence by cross-examining her.  Indeed the fact that the Commonwealth ultimately sought to make the submissions it did, is difficult to reconcile with its opposition to the consolidation or joint hearing of the employment proceeding and agency proceeding.

5. It might be thought that it would be only in fairly compelling circumstances that the Commonwealth would involve itself directly in a contest (even if only by making submissions) between a person seeking the benefit of what is remedial Commonwealth legislation and another putting in issue any entitlement of that person under that legislation.  I accept, however, that this may be taking too narrow a view of the position of the Commonwealth as a litigant.  Nevertheless if circumstances did arise where the Commonwealth thought it was necessary to involve itself in such a factual contest, then it should make it perfectly plain to the parties and the Court at an early stage that this was the position it was adopting.  This did not, in my opinion, happen and the ensuing confusion and its resolution probably consumed at least two hours of hearing time (in addition to the time taken up in debating whether the proceedings should be consolidated).  That this occurred is to be regretted.

   Costs

6. While some submissions were made about costs during the hearing, I think the preferable course is to give the parties an opportunity to make submissions about costs with the benefit of the findings I have made as part of the submissions that will be necessary to deal with the question of how the applicant's entitlement to damages is reflected in orders.

   Conclusion

7. I have concluded that both the respondent and the Commonwealth have engaged in conduct proscribed by the S D Act and the applicant is entitled to compensation for loss and damage flowing from that conduct. The applicant is entitled to $15,100 by way of compensation for the sexual harassment and discrimination by the respondent, which is also deemed to be conduct of the Commonwealth, and $5000 by way of aggravated damages from the respondent for his conduct following the making of the complaint to HREOC. The only formal order I will make is to stand the matter over for a period from the date of publishing these reasons with a direction that the parties file and serve written submissions within 10 days dealing with the question of what orders should be made concerning the payment of compensation and what orders should be made about costs.

I certify that the preceding one hundred and ninety-six (196) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:            11 April 2001

Counsel for Leanne Elliott:	K Eastman
Solicitor for Leanne Elliott:	W G McNally & Co
Counsel for Prem Nanda:	G Scragg
Solicitor for Prem Nanda:	Marshall & Partners
Counsel for the Commonwealth:	S Winters
Solicitor for the Commonwealth:	Australian Government Solicitor
Date of Hearing:	22-23 June, 21-23 August, 5 September, 3-4 October 2000
Date of Judgment:	11 April 2001