Greenhalgh v Human Rights Commission of Australia

[1997] FCA 1614

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY ) No.NG 158 of 1997

GENERAL DIVISION 1

Between: KAREN GREENHALGH

Applicant

And: HUMAN RIGHTS COMMISSION of AUSTRALIA

First Respondent

And: NATIONAL AUSTRALIA

BANK LTD

Second Respondent

REASONS FOR JUDGMENT

EINFELD J SYDNEY 1 OCTOBER 1997

By an amended application for order of review filed with consent and by leave, the applicant seeks relief under the Administrative Decisions (Judicial Review) Act in relation to a determination of the Human Rights and Equal Opportunity

Commission made on 23 January 1997. In that determination the Commission found that the second respondent, the National Australia Bank, had been in breach of its obligations under the Sex Discrimination Act in that it or one of its employees had sexually harassed the applicant.

As a consequence of that finding which was accompanied by some other ancillary findings, the Commission awarded the applicant damages in the sum of $14,000 pursuant to section 8l(l) (b) (iv) of the Sex Discrimination Act by way of compensation for the

loss and damage which she suffered from the sexual harassment. The applicant has sought the intervention of the Court on the basis that the Commission erred in law in failing to award the

applicant aggravated damages and in certain other less significant respects. The argument advanced has been that the findings of fact made by the Commission must have led as a matter of law to an award of aggravated damages. In fact the applicant has asked this Court to assess such damages or, as an alternative, to increase the general damages awarded by the Commission.

In my opinion, this proceeding is very doubtfully based. It is not necessary for present purposes to examine whether, in the present incarnation of the Sex Discrimination Act, there is available judicial review at the instance of the applicant in circumstances such as this. At any rate, there must be some considerable doubt as to whether judicial review applies at all, having in mind the fact that the findings of the Commission are by section 81 non-binding on the parties and presumably on the

community at large. For that reason alone it is difficult to imagine in those circumstances how a court of review could

examine the matters which have been raised. There are also other problems concerning jurisdiction, including whether a successful applicant can, in the present state of legislation, energise any type of appeal or review at all.

However, in order to air the issues in the case, I have conducted this hearing on the basis of assuming that there is

provision for judicial review at the instance of the applicant in circumstances where the applicant has been successful before

the Commission and have conducted the debate with counsel for the applicant on the basis of ascertaining what errors of law are relied upon within the framework of those prescribed by the Judicial Review Act.

Even on that basis, the amended notice of appeal is, in my opinion, drawn under a misconception because it seeks to activate the Judicial Review Act in circumstances to which it was not directed. However, the basis upon which I propose to reject the appeal makes an assumption that at least the substance of the amended notice of appeal is also a matter which the Court can consider in the present case.

I should observe in passing that the matters other than aggravated damages to which the notice of appeal draws attention were all dealt with by the Tribunal below and in each case rejected for a particular reason based upon a finding of fact. I can see no basis at all on judicial review or otherwise in which an appellate or review court would consider varying or quashing those decisions.

So far as concerns aggravated damages or an increase in general damages, the applicant has supplied detailed written

submissions. The submissions effectively divided into three relevant separate sections. The first are findings of fact, the second are errors of law, and the third are errors of fact. The

only section that could have any relevance to judicial review is that which is set out under the heading "Errors of Law". As raised in argument, none of these matters raise errors of law at all, or if they do, the correction of the error would not result in the relief which the applicant seeks. The fundamental

complaint under this heading, although expressed I think less than advisedly, is that the Tribunal misconceived the appropriate definition and role of aggravated damages or so understated the damage and loss which the applicant suffered as to have to led to error of law in the assessment of general damages.

If that argument is to have any meaning at all, what it amounts to in substance is that as a matter of law the Tribunal was bound to award more damages than it did either in compensatory

terms or in aggravated damages. It would be a very rare case indeed where such an order would be made, even by an appeal

court hearing an appeal from damages assessment or award where

it had broad powers to consider both questions of fact and law.

Certainly in a case under the Judicial Review Act, there is no power at all to assess damages in the sense of substituting a decision of the review court for the decision below based upon

the facts found below, even if they were enforceable and binding between the parties. In fact, an analysis of the Commission's

determination in the matter shows that it considered both

aggravated and compensatory damages under all the headings or

practically all the headings which the applicant had advanced

before the Commission and has advanced here.

In other words, the Commission found all or the vast majority of the facts asserted by the applciant in her favour. Accordingly, there is no basis for attacking the findings of fact even if this Court had the power to entertain such an appeal. The only way in which the Court could conceivably deal with the matter would be if the findings of fact necessarily required as a matter of law and legal principle an award of aggravated damages or a substantially increased award of general damages.

No argument was really addressed to this issue at all, and no argument could, as I see it, possibly have been addressed in the particular circumstances of this case. There simply is no basis upon which it could be alleged that someone must get an award of aggravated damages as the result of the findings of fact made here. Nor could it be said that the award of general damages

was so unreasonable as to have been a complete misapplication of

the appropriate assessment principles or discretions.

The Commission, of course, heard the applicant and heard the other witnesses, received a considerable amount of psychiatric and psychological evidence, and had the opportunity of making its own assessment of the credibility of the applicant. None of

these advantages have been reposed in this Court.

It has been said many times that even if an appeal or review court has a completely different opinion to the tribunal of fact of what damages should have been awarded in a particular case, it is not entitled to substitute that view unless there has been

such a failure of application to the legal principles and legal task involved as to call for a complete re-assessment. If, for example, the tribunal below omits to take into consideration at all or give attention to relevant evidence that can affect damages, there may well be an opportunity for intervention,

although even then I would doubt that the Judicial Review Act

would provide an adequate vehicle for that intervention.

This case is in any event not such a case at all. The tribunal made its assessment based upon the evidence. As I said, it found practically all of the relevant facts in favour of the applicant and it assessed the damages accordingly. There is no basis upon which it could be said that aggravated damages must

flow from those findings of fact. Indeed, the Commission determined that although there were a number of aggravating

features that might ground an award in an appropriate case of aggravated damages, in the Commission's opinion an award of compensatory damages was adequate to deal with the losses and damage which the applicant sustained. No basis has been shown

for intervention in relation to that finding and in my view the

attempt to displace it must fail.

Likewise, if not more difficult for the applicant, is the attack on the award of general damages. Again, unless there has been

some major failure of application to relevant legal principle, an appellate or review court will not substitute its own view of general damages for the view of the tribunal of fact that had the advantage of hearing and absorbing the primary evidence itself. This will apply even if the appeal court is of the

opinion that the general damages were significantly too low or too high. It will only be where they are so out of kilter with community standards and decisions of the courts that any question of intervention and re-assessment will apply. This is not such a case.

In those circumstances, assuming that the Court has some jurisdiction to hear the matters energised in this case, it is

my opinion that the application must fail on the merits. I

therefore dismiss the application for an order in review.

[After discussion]

The question of costs is a difficult issue in this case. According to the current formulation of costs entitlements the matter is at large. As I have written in other cases, I do not believe that there is any longer such a thing as a normal rule that the successful party should have its costs as a matter of course because the legislation now provides that costs are in the broad discretion of the Court.

Cases of this kind are important in the community. They do raise important matters of public policy and raise important

public interests. The opportunity for them to be brought to the attention of the Court and the public at large is already limited, not least by the unavailability of legal aid in the majority of the cases these days. Moreover, by the nature of the type of circumstances which have given rise to this appeal, the employer will often be in a far more powerful position than the employee. In other words, the perpetrator of the wrong will have an additional area of power over the victim in addition to the power exercised when the sexual harassment was committed in the first place.

It strikes me that the Court should not allow this imbalance to be exaggerated or increased any further. Even where the

employer is a relatively small business, which is certainly not the case with this employer, the employer will usually be in a better financial situation in relation to funding the litigation

than the victim and the victim's health and losses should not be

added to by the pressure of costs in legal proceedings.

On the other hand, there is certainly an important public interest that cases that cannot succeed should not be brought to

the Court and should be dealt with in some other way. Even in cases of importance -- and sexual harassment cases are important and should not be dissuaded by risks as to costs -- it is important that the Court's very stretched resources be husbanded

and supervised closely so that litigation that cannot succeed does not occupy a large amount of time and costs. That is a

public interest no less than the public interest that people who

have suffered such harassment be able to seek and obtain relief.

With the broad discretion which the Court has, these public interests have to be balanced, and where a case has been brought

which had effectively no chance of success from the time of its launching to the time of its completion, it seems to me that the public interest should fall on the side of the dissuasion of unmeritorious litigation.

In the circumstances, I think that it would be wrong to deny the successful party in this case an order for costs but I would urge that consideration be given by the second respondent in the particular circumstances of the case not to enforce the order. The applicant is still an employee of the second respondent. The hurt and disruption that has been caused by this case has already caused enough damage and harm. In the interests of good relations between the employer and the employee, it seems to me that the employer should give serious consideration to not enforcing the order.

From the Court's point of view, it seems to me that I have really no choice in the matter. The case had no merit, and did not have merit from the beginning. The issues of the jurisdiction of the Court to deal with it were not seriously

addressed even though it is widely known that the jurisdiction of the Human Rights Commission has been under a great deal of legal and other assault for some time and considerations of

jurisdiction should be comprehensively considered before cases

of such a kind are launched. I think that it would be wrong if the Court did not recognise that the second respondent has been brought here to fight a case which could not have succeeded and

has had to prepare as if it was ready to deal with a case that could succeed. In the circumstances the Court should and will order that the second respondent should receive its costs, but

I urge that, in the interests of good relations and the

recognition of the harm and hurt that has been done in the past, the order not be enforced. There will be no order for the costs of the Human Rights Commission.

-

/tJ,Jc'

I c& that this and the

preceding pages are s true COPY of the

Reasons for Judgment herein of his Honour

1

Dated: 2 7 . 1 ~ - 97 I