Gorden, Cynthia v Davis, Clayton

[1997] FCA 290

CATCHWORDS

SEX DISCRIMINATION - Determination of Human Rights and Equal Opportunity Commission - whether findings of fact justified on probabilities of case - nature of conduct - whether in breach of Sex Discrimination Act - appropriate sum for damages. 

Sex Discrimination Act 1984 (Cth) - ss.28, 81, 83D

CYNTHIA GORDEN v CLAYTON DAVIS
NG 921 of 1996

Davies J.
27 February 1997
Sydney

IN THE FEDERAL COURT OF AUSTRALIA     )   
  )  
NEW SOUTH WALES DISTRICT REGISTRY    )  No NG 921 of 1996
  )     
GENERAL DIVISION  )     
  )     

BETWEEN:  CYNTHIA GORDEN

Applicant

AND:  CLAYTON DAVIS

Respondent

Coram:  Davies J.
Date:  27 February 1997
Place:  Sydney

MINUTES OF ORDER

THE COURT DECLARES THAT:

The respondent engaged in unlawful sexual harassment of the applicant.

THE COURT ORDERS THAT:

1.        The respondent pay to the applicant the sum of $12,000 in damages.

2.The respondent pay the applicant's costs.

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     )  No NG 921 of 1996
  )     
GENERAL DIVISION  )     
  )     

BETWEEN:               CYNTHIA GORDEN

Applicant

AND:  CLAYTON DAVIS

Respondent

Coram:           Davies J.
Date:              27 February 1997
Place:              Sydney

REASONS FOR JUDGMENT

This application is brought under s.83D of the Sex Discrimination Act 1984 (Cth) ("the Act") in relation to a determination of the Human Rights and Equal Opportunity Commission constituted by the Honourable Robert Nettlefold, Commissioner, which was given on 16 April 1993. The determination was therefore a subdivision B determination, having been made during the period starting on 13 January 1993 and ending on the commencement of subdivision B of division 3A of the Act.

Section 83D provides:-

"A person, including a complainant, before a commission may commence proceedings in the Federal Court for an order in relation to a subdivision B determination."

Section 83D(3) provides:-

"The court may make such orders as it thinks fit." 

Section 83D(7) provides:-

"In the proceedings, the question of whether the respondent has engaged in conduct or committed an act that is unlawful under the Sex Discrimination Act is to be dealt with by the court by way of a hearing de novo, but the court may receive as evidence a copy of the commission's written reasons for the determination, a copy of any document that was before the commission, and a copy of the record of the commission's inquiry."

There has been tendered in evidence before me today a copy of the transcript of the inquiry before Commissioner Nettlefold and a copy of the Commissioner's reasons for decision which constitutes the determination itself. 

The conduct complained of occurred between November 1988 and February 1991 and it is therefore to be considered under the terms of the Act as it then read. Section 28 provided:-

"(1)It is unlawful for a person to harass sexually:

(a)an employee of that person;

..."

(3)        A person shall, for the purposes of this section, be taken to harass sexually another person if the first-mentioned person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or engages in other unwelcome conduct of a sexual nature in relation to the other person, and:

(a)the other person has reasonable grounds for believing that a rejection of the advance, a refusal of the request or the taking of objection to the conduct would disadvantage the other person in any way in connection with the other person's employment or work or possible employment or possible work; or

(b)as a result of the other person's rejection of the advance, refusal of the request or taking of objection to the conduct, the other person is disadvantaged in any way in connection with the other person's employment or work or possible employment or possible work."

Section 81 of the Sex Discrimination Act provided:-

"81. (1)After holding an inquiry, the Commission may:

...

(b)find the complaint substantiated and make a determination, which may include any one or more of the following:

...

(iv)except where the complaint was dealt with as a representative complaint - a declaration that the respondent should pay to the complainant damages by way of compensation for any loss or damage suffered by reason of the conduct of the respondent; ..."

Section 81(4) provided:-

"The damage referred to in paragraph (1)(b) includes injury to the complainant's feelings or humiliation suffered by the complainant."

The respondent has not appeared today but did appear before Commissioner Nettlefold and participated actively in the inquiry by the Commissioner, both giving evidence and cross-examining the complainant Cynthia Gorden.  I have read the transcript before the Commissioner and am satisfied that the findings of fact made in the Commissioner's determination were justified on the probabilities of the case.  Of course before me the respondent has not given evidence and I have only Miss Gorden's evidence, but I can say that my perusal of the transcript does not suggest to me that the findings of fact made by the Commissioner were incorrect.  They are findings with which I agree and which I adopt. 

It is clear that the conduct involved sexual harassment as defined by the Act. It not only involved sexual intercourse without consent and constant harassment, but the conduct occurred in the circumstance where there were both express and implied
threats that, if the complainant did not accept the conduct, her employment would be affected.  Thus, at page 11, of the transcript Miss Gorden gave evidence that the respondent said on one occasion that, if she told anyone about his conduct, he would terminate her employment.  On another occasion, as appears from page 12, he said if the complainant did not go to a motel with him, he would not give her her salary. 

I am satisfied that the constant harassment was both unwelcome and in breach of the Act. It occurred in circumstances where the complainant had reasonable grounds for believing that if she refused the requests or took objection to the conduct she would be disadvantaged in her employment.

In fact, Miss Gorden was ultimately disadvantaged in her employment because, as the result of the conduct which she could not tolerate, she ceased employment.  Miss Gorden had been a singer in a band or a group which the respondent had established.  The respondent was the employer.  He was in a position of having considerable influence over the persons who worked in the group and clearly he used his position of power for the purpose of sexual gratification to himself. 

The Commissioner considered that compensation in the sum of $12,000 would be appropriate.  It seems to me also that that sum is the correct figure to award.  The conduct was very serious indeed.  It did involve two occasions of sexual intercourse without consent as well as constant, continual harassment of a sexual nature.  In the circumstances, the appropriate order is that the court declare itself satisfied that the respondent engaged in unlawful sexual harassment of the applicant, Cynthia Gorden,
and that the court order the respondent pay to the applicant the sum of $12,000 damages.

There will be an order that the respondent pay the costs of the proceedings.

I certify that this and the 4 preceding pages
are a true copy of the reasons for judgment herein
of the Honourable Mr Justice Davies.

Associate:

Date:    27 February 1997

Counsel for the applicant:  S. Wilson

Solicitors for the applicant:  Jones Staff & Co.                  

Date of hearing:  27 February 1997                   

Date of judgment:  27 February 1997