Higgins v Orchard - [2021] TASSC 44

[2021] TASSC 44

COURT: SUPREME COURT OF TASMANIA

CITATION: Higgins v Orchard [2021] TASSC 44

PARTIES:  HIGGINS, Frayne John
  v
  ORCHARD, Lucy

FILE NO: 2325/2020
DECISION

APPEALED FROM: Lucy Orchard v Frayne Higgins [2020] TASADT 11

DELIVERED ON:  15 September 2021
DELIVERED AT:  Hobart
HEARING DATE:  23 June 2021
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Human Rights – Tribunals, commissions and other authorities – Tasmania – Anti-Discrimination Tribunal – Inquiry – Nature and scope of inquiry – Duty to inquire – Assessment of compensation.

Anti-Discrimination Act 1998 (Tas), ss 13(a), 78(1), 86, 89(1).
Soares v Human Rights and Equal Opportunity Commission (1998) 53 ALD 74, referred to.
Aust Dig Human Rights [53]

REPRESENTATION:

Counsel:
             Appellant:  In person
             Respondent:  C Mackie
Solicitors:
             Respondent:  Dobson Mitchell Allport

Judgment Number: [2021] TASSC 44
Number of paragraphs: 111

Serial No 44/2021
File No 2325/2020

FRAYNE JOHN HIGGINS v LUCY ORCHARD

REASONS FOR JUDGMENT BLOW CJ

15 September 2021

This is an appeal from a decision of the Anti-Discrimination Tribunal constituted by one of its members, Ms K Cuthbertson: Lucy Orchard v Frayne Higgins [2020] TASADT 11. She conducted an inquiry in relation to a complaint made by the respondent to this appeal, Lucy Orchard ("the complainant"), about the conduct of the appellant, Frayne Higgins. She made a finding that the appellant had sexually harassed the complainant, contrary to s 17(2) of the Anti-Discrimination Act 1998 ("the Act"). She made an order pursuant to s 89(1)(d) of the Act requiring the appellant to pay the complainant compensation in the sum of $45,000. That amount included a component of $20,000 in the nature of aggravated damages. The appellant is aggrieved by the decision of the tribunal and has appealed against it. He was not represented by counsel at the hearing of the appeal.
Under s 100(1) of the Act, a person may appeal to this Court on a question of law or fact against an order made under s 89(1). The appellant relied on grounds of appeal to the following effect:
·     That the proceedings commenced by the complainant were vexatious.
·     That the learned tribunal member was biased.
·     That he was denied procedural fairness.
·     That the tribunal's orders were inconsistent with the evidence.
·     That the complainant had been paid compensation by his employer, and that that payment should have been taken into account in his favour in the assessment of compensation.
·     That the award of $20,000 compensation in the nature of aggravated damages was manifestly excessive.
The complainant made a complaint to the Anti-Discrimination Commissioner in December 2017 in relation to conduct allegedly engaged in by the appellant between late 2013 and November 2017. At all material times she was employed in a store named Sanity in the Eastlands shopping centre and the appellant made deliveries there in the course of working as a delivery driver for Toll Transport Pty Ltd. She complained of sexual harassment as well as offensive, humiliating, intimidating, insulting or ridiculing conduct.
In her reasons at [269], the learned tribunal member made findings that the appellant had engaged in conduct that constituted sexual harassment. The conduct in question was summarised by her in the following findings at [267]:
"(a)That the respondent engaged in behaviour towards the complainant that could properly be regarded as favouring her. The Tribunal accepts the evidence of the other staff members at Sanity that the respondent would ask after the complainant when she was not at the store and enquire when she was next working. The Tribunal also accepts their evidence that he would try and engage her to deal with his deliveries even when other staff were available to do so;
(b)That the respondent referred to the complainant on up to 6 occasions as Juicy Lucy. The Tribunal also finds that he ceased that conduct after he slapped the complainant on the buttocks and was confronted by Ms Cole about the inappropriate nature of his conduct;
(c)That the respondent asked the complainant how her boyfriend was on numerous occasions;
(d)That sometime in mid-2014, the respondent made comment to the complainant about her clothing, specifically stating 'nice pants' before slapping her on the bottom without her consent as she bent over to inspect a box he had delivered."
In September 2017 a senior executive of Sanity complained to Toll about the appellant's conduct towards the complainant, without her knowledge. That led to an investigation. The appellant was made aware of the complaint. He consulted a solicitor. On 6 November 2017 that solicitor sent the complainant a letter that was referred to throughout the proceedings as the "defamation letter". In that letter the solicitor asserted that the complainant had defamed the appellant, and demanded that she do the following things within 28 days:
"1   Deliver a written apology, which:
(a)retracts your statement and your defamatory imputation; and
(b)acknowledges that your statement and defamatory imputation therein are untrue.
2   Publish the letter of apology by providing a copy to Mr Higgins c/- Nick Beattie, Barrister & Solicitor at 114 Bathurst Street, Hobart 7000.
3   Pay to Mr Higgins the sum of $30,000.00, that being the compensation for the economic loss Mr Higgins has suffered directly as a result of your defamatory statement."
In her reasons at [322], the learned tribunal member awarded $25,000 as compensation for the consequences of the appellant's sexual harassment. At [323] she awarded a further $20,000 in the nature of aggravated damages, commenting that the principal aggravating feature was the sending of the defamation letter.

Vexatious proceedings

The appellant's grounds of appeal are set out in two documents, namely his notice of appeal (grounds 1 and 2) and his "Notice of Amendment to Appeal" (new grounds 1-5). New ground 4 reads as follows:
"4 The proceedings were vexatious in nature from Ms Orchard since she had already been paid out by Toll and was only after me personally. (Vexatious Proceedings Act 2008)".
The statute referred to in that ground is a New South Wales statute which does not apply in Tasmania, but there is a relevant Tasmanian provision. Under s 99(2)(a) of the Act, the tribunal has the power to dismiss a complaint at any time if it is satisfied that the complaint is vexatious. This ground of appeal amounts to an assertion that the tribunal should have taken that course.
There are a number of situations in which legal proceedings may properly be regarded as vexatious. Those situations are as summarised by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491 as follows:
"1   Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.
2   They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.
3   They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless."
It appears that there were originally two respondents to the tribunal proceedings, the appellant and his employer, Toll Transport Pty Ltd. The part of the proceedings relating to Toll was settled in or about June 2019. The matter proceeded to a hearing in relation to the appellant only. The settlement between the complainant and Toll was not mentioned at the hearing or in the learned tribunal member's reasons. I have no evidence as to the terms of the settlement. The appellant has asserted that Toll paid a sum of money to the complainant. I have no reason to disbelieve him, but I have no evidence as to any payment. If it is a fact that the complainant received money from Toll and still pursued a claim for compensation against the appellant, that alone does not warrant an inference that she was acting vexatiously. If the complainant went to the tribunal with a view to recovering an excessive amount by way of compensation it might be that she was acting vexatiously, but I have no evidence that she was doing that.
Although ground 4 refers only to the complainant pursuing the appellant after she had "been paid out by Toll", there were other bases on which the appellant argued that the tribunal proceedings were vexatious. For the purpose of this appeal he submitted a written outline of argument in which three pages were devoted to the vexatious proceedings issue. His contentions as to this issue, and my comments in relation to those contentions, are as follows:
·     He relied on a letter written by the complainant's solicitors to Toll's solicitors and himself dated 12 December 2018 offering to settle for $100,000 inclusive of costs, subject to certain conditions. Those conditions included him acknowledging without reservation that he had unlawfully sexually harassed the complainant between 2013 and 2017, that he acknowledged without reservation that the defamation letter amounted to unlawful victimisation, and that he would provide a written apology. The acknowledgements and the apology were to be incorporated in a deed that would not be confidential, whereas any settlement with Toll could be made confidential if Toll so wished. The appellant contended that the non-confidentiality proposal indicated an intention to publicly harass or annoy him. The letter was endorsed "Without Prejudice Save As to Costs" but was before the tribunal. In my view there was nothing improper about the contents of the letter. It is common for solicitors to initiate settlement negotiations by making extreme demands, giving themselves a lot of room to manoeuvre towards a reasonable settlement.
·     He contended that the complainant had exaggerated her health problems. The learned tribunal member made findings about the complainant's mental health at [312]-[315]. In substance she accepted the complainant's evidence as to the extent of her health problems. I am satisfied that all of those findings were open to her.
· He relied on an email sent by a representative of Sanity to that company's solicitors on 29 November 2017 requesting that they prepare a letter on behalf of the complainant asking him to withdraw the defamation letter and his demands. Apparently no such letter was sent. I understand him to contend that the complainant's decision to make a complaint under the Act rather than asking him to withdraw is evidence of vexatious conduct. I disagree. It is the right of every citizen to make a complaint under the Act. An assertion by the person who is the subject of the complaint that the complaint is a false one is not enough to establish that the complaint was vexatious.
·     He contends that the complainant and her witnesses made false and misleading statements in their evidence. In relation to this point he identified a number of minor inconsistencies in the evidence. For example there was an inconsistency as to whether Ms Gilchrist of Sanity first knew of the slapping allegation on 30 August 2017 or a few days earlier. There was an inconsistency in the complainant's evidence as to whether she was asked "Have you got a boyfriend?" or "How is your boyfriend?" I need not list all of these inconsistencies. They were not sufficiently significant to support the contention that the proceedings were vexatious.
The matters relied upon by the appellant, when considered separately and in the aggregate, do not support his contention that the proceedings were vexatious. Ground 4 must fail.

Bias

The common law principles as to bias and apprehended bias that apply to judges also apply to decision-makers exercising statutory powers. If a tribunal member is actually biased, he or she is disqualified. As to apprehended bias, a tribunal member is disqualified if a fair-minded lay observer might reasonably apprehend that he or she might not bring an impartial mind to the resolution of a question that he or she is required to decide: Ebner v Official Trustee in Bankruptcy [2000] HCA 63, 205 CLR 337, per Gleeson CJ, McHugh, Gummow and Hayne JJ at [6].
Two grounds in the appellant's Notice of Amendment to Appeal are relevant to the issue of bias. They read as follows:
"1 The laws of natural justice were not used. (Anti Discrimination Act 87-4a)
2 The Tribunal was not impartial and objective. In particular in relation to Bias and its subsection 'Prejudgement' as defined in the Australian Law Reform Commission on Judicial Impartiality Dec 2020. International Covenant on Civil and Political Rights Article 14 'All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law'."
Ground 1 refers to s 77(4)(a) of the Act. That provision requires the tribunal "to observe the rules of natural justice". There are two traditional rules of natural justice, the hearing rule and the bias rule. The hearing rule requires procedural fairness, which I will address later. The bias rule requires the disqualification of a decision-maker where circumstances raise a doubt as to that decision-maker's impartiality: Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability, 6^th ed, LawBook Co, 2017, at [7.20].
Six pages of the appellant's written submissions relate to the bias issue. It also featured significantly in his oral submissions. One of his principal contentions concerns unequal treatment. He conducted his own case before the tribunal, but the complainant was represented by counsel. He contends that the learned tribunal member showed favouritism towards her counsel. He contends that the transcript and the audio recording of the proceedings have been interfered with to remove evidence of that favouritism. He contends that the amount that he was ordered to pay is itself indicative of bias. I will deal with these and other contentions one by one.

Proceedings before the hearing

In his written submissions, the appellant asserted that the learned tribunal member told him at a conciliation hearing that when the tribunal received documents from Toll, he would be given an opportunity to object to some of them before they were sent to the complainant's solicitors, but that that did not happen, with Toll's documents being sent to him and the complainant's solicitors with the same email. Section 77 of the Act provides, "Anything said, written or done in the course of conciliation proceedings is not to be taken into account in any subsequent proceedings held in relation to a complaint." I must therefore ignore the assertion as to what was said during the conciliation proceedings.
Under s 87(2) of the Act, the tribunal has the power, by written notice, to require any person to appear before it to give evidence. During 2019 both parties applied for notices under s 87(2) to be issued to various potential witnesses. The learned tribunal member delivered a written decision as to those applications on 12 February 2020. She decided that notices should be issued to three witnesses but, amongst other things, rejected a request from the appellant for a notice to issue to "Toll Representatives involved in this Complaint including Kathleen Newbury, Emilia Cvetkovic, John Slatter and Karleen from HR Toll". The appellant had submitted that the management of the complaint made to Toll about his conduct and Toll's treatment of him in relation to that complaint were relevant. The learned tribunal member rejected that proposition. Subsequently the solicitors for the complainant arranged for the tribunal to issue a notice pursuant to s 80(2)(b) of the Act requiring Toll to produce the employment records of a witness named Roger Menzie who later gave evidence at the hearing. I reject the suggestion that the responses to the applications by the appellant and the complainant indicate favouritism or possible bias. In interlocutory proceedings concerning different issues, it often happens that one party loses an application and the other party subsequently makes a successful application.
The learned tribunal member decided that witness notices should be issued to two of the appellant's desired witnesses, but refused to issue notices to two other named individuals, or to "Sanity representatives" or "Toll representatives" as described above. The appellant was aggrieved by that decision. According to his written submissions, he sent an email to the tribunal asking what he could do about it, and received an email saying that his concerns would be referred to the learned tribunal member, but he was not told that he could make an application to change Tribunal members. I have no reason to think that such an application might have succeeded. Any lack of thoroughness in the information provided by the tribunal staff gives absolutely no indication of possible bias or favouritism on the part of the learned tribunal member.

The transcript and the audio recording

No transcript of the tribunal proceedings was created until after this appeal was instituted. Once a notice of appeal was filed, a transcript was prepared because rr 704 and 689(1)(b) of the Supreme Court Rules 2000 required that. A member of the tribunal's staff, Ms Marriott, gave evidence at the hearing of this appeal as to how that was arranged. The Tribunal had a digital audio recording of the proceedings. It does not have the facilities to prepare transcripts. It uses the services of this Court's transcribers. They have different software. Ms Marriott therefore reformatted the audio recording and sent it in a digital form to this Court, where the transcribers prepared the transcript. A copy of the transcript was subsequently provided to the appellant. He queried its accuracy. A digital copy of the audio recording was therefore provided to him. That audio recording is consistent with the transcript, but he contends that bits are missing from both.
The appellant's wife assisted him during the tribunal hearing, which extended over five days. He and she each gave evidence on the hearing of this appeal as to omissions from the transcript. I accept that they both genuinely believe that the transcript has been doctored. Both of them swore affidavits, and were cross-examined before me.
The appellant said in his affidavit that the tribunal member told him at the start of the hearing that she could not give him legal advice. His wife said that in her affidavit too. The transcript commences with 14 pages of preliminary discussion before the opening speech of counsel for the complainant, Mr Mackie. It does not record the learned tribunal member telling the appellant that she could not give him legal advice, then or at any time. The first page of text in the transcript is numbered as page 2. The appellant submitted to me that page 1 must have been removed, but there was an unnumbered cover page that could well have been page 1. He argued that the tribunal member had shown favouritism by giving legal advice to Mr Mackie but not to him, and that that provided a motive for interfering with the transcript and the audio-recording.
In his affidavit the appellant's second allegation as to omissions from the transcript reads as follows:
"Later on in the hearing Mr Mackie was given legal advice on cases to look up in regard to the defamation letter. Tribunal Member Cuthbertson came back later in the hearing and said to Mr Mackie that she thought that they would not be relevant, but none of this is on the audio and the transcript."
The appellant's wife said something similar in her affidavit, as follows:
"But I was amazed later in the tribunal hearing on I think Thursday the 5^th that Tribunal Member Cuthbertson gave Mr Mackie a Court Case to look up in reference to the defamation claim, and saying that he should look into it. When we started on the Tuesday the 10^th March Tribunal Member Cuthbertson said that she had looked into the cases [sic] that she gave Mr Mackie and said that she thought they weren't relevant."

The transcript shows that on the last day of the hearing, 10 March, after the last witness had given evidence, during a discussion about closing submissions, the learned tribunal member said that one thing that had been exercising her mind was whether any questions of privilege arose in relation to the defamation letter. She said that there was a case that dealt with litigation privilege a few years previously. It seems that she used a computer to find its name and citation, which she provided to the appellant and Mr Mackie. It was Page v McGovern [2008] TASSC 13, 17 Tas R 208. The hearing concluded shortly after that and was never resumed. The closing submissions were made in writing.
Page v McGovern was of no relevance. It concerned allegations made in an affidavit that was prepared in contemplation of restraint order proceedings and in a letter asking a police officer to proceed with an assault prosecution. The Full Court held that the complainant who made the allegations had a statutory immunity and could not be liable for damages for defamation. The case was of no relevance to the defamation letter. Given that the case was first mentioned at the very end of the hearing, there was no opportunity for the learned tribunal member to come back and say that it was irrelevant.
The third omission alleged in the appellant's affidavit relates to a statutory declaration signed by a witness named Jessica Smith. The appellant said that, to the best of his recollection, he asked for it to be put into evidence. The transcript shows that the appellant questioned Ms Smith about her statutory declaration, but does not record him seeking to tender it as an exhibit. It certainly was not marked as an exhibit.
I was provided with a copy of the statutory declaration for the purpose of the appeal. Ms Smith was the complainant's manager in 2017. In the statutory declaration she said that the defamation letter was delivered to the Sanity store when the complainant was not at work; that she rang the complainant and was given permission to open the letter; that she read it to the complainant; and that the complainant cried, was obviously very frightened, and had time off work after that. In cross-examination, the appellant suggested to Ms Smith that it was not her but a Mrs Hallam who opened the letter and rang the complainant. The complainant said in her evidence that it was Mrs Hallam (Krystal Vienna-Hallam) who rang her and read out the letter. Mrs Hallam also gave evidence that she did that. Ms Smith conceded under cross-examination that it was either her or Mrs Hallam who opened the letter and read it. Tendering Ms Smith's statutory declaration would have made absolutely no difference to the strength or weakness of the case for either party. I think it most likely that the appellant meant to tender the document, forgot to do so, and did not realise that he had not tendered it. Judges encounter that sort of oversight on the part of lawyers all the time.
The fourth omission alleged in the appellant's affidavit concerns something said by his wife when she should not have been speaking at all. He said this in his affidavit:
"Tribunal Member Cuthbertson had a go at my wife about something she was suppose [sic] to have said and Mr Mackie joined in as well. What my wife was supposed to have said was not on the transcript or audio."
According to the transcript, the learned tribunal member rebuked the appellant's wife on three occasions on the first day of the hearing when the complainant was giving evidence. On the first occasion she said, "Just bear in mind, Mrs Higgins, that I can see how you're behaving. So you might want to think about that when you're – and how you behave within the courtroom." On the second occasion she said, "You'll get a chance to give evidence, Ms Higgins. I've already warned you about the impact that behaviour like that has. So just think about how you're behaving in court, please." On those first two occasions the transcript does not include anything said by Mrs Higgins or anything said by Mr Mackie about her behaviour. However the tribunal member's first rebuke was preceded by the complainant asking, "Is that funny?"
On the occasion of the third rebuke, contrary to the appellant's assertions, the transcript does record things said by both his wife and Mr Mackie. The relevant passage reads as follows:
"TRIBUNAL MEMBER:    Ms Higgins, I'm not going to warn you again, but I can hear these things and they're really inappropriate. You don't make comments about the witness's evidence in a way –
MS HIGGINS:      No, I was asking her a question.
MR MACKIE:       It's –
TRIBUNAL MEMBER:     Yeah, well, it's quite – you need to be really careful about that.
MS HIGGINS:      You can't help if I –
MR MACKIE:       Can I just say, I'm going to make an application that Ms Higgins not be at the Bar Table if this continues. Last time and if you do it again I'm going to make an application that you not be at the Bar Table.
TRIBUNAL MEMBER:     Well, there's –
MS HIGGINS:      Could you please explain to me what I'm doing wrong?
TRIBUNAL MEMBER:     So, well, there's a couple of things. You're making audible comments. So, whether they're being correctly interpreted or not, I'm not sure, but it's making – it's creating an atmosphere which isn't good, and also I've already mentioned about some of your behaviour at the Bar Table and expressions and things of that nature. So those sorts of –
MS HIGGINS:      Sorry, I do have panic attacks and I get very nervous.
TRIBUNAL MEMBER:     Yeah, that's fair enough but we just need to make sure –
MS HIGGINS:      How can I help him then while I'm here?
TRIBUNAL MEMBER:     Well, you'll need to find a way of doing that without making what appears to be adverse comments about the evidence that's being –
MS HIGGINS:      I have been."
The learned tribunal member ended that discussion by adjourning for lunch. It may well be that whatever Mrs Higgins said to the appellant was not picked up by the recording equipment, or that it was not transcribed because she was not addressing the tribunal.
The fifth assertion by the appellant as to an omission reads, "Mr Mackie when he was asking advice on his limitations on questioning a witness, told Ms Cuthbertson that his case was all based on he said/she said without getting further evidence. I cannot find this on the audio or transcript." Page 231 of the transcript records a discussion on the morning of the third day of the hearing during which Mr Mackie said this to the learned tribunal member:
"And there were only two people present at the time this occurred, and that was Ms Orchard and Mr Higgins. And so it becomes a test of credit. And that is the reason why you've had witnesses that I will colloquially call recent complaint witnesses that have come before you to corroborate Ms Orchard's evidence ...".
That could well be the passage that the appellant was thinking of but did not find.
Mrs Higgins' affidavit also includes a passage about this alleged omission. She said, "Mr Mackie said that if he couldn't get Mr Higgins on any other allegation, it only came down to, he said, she said." She said that this was before Mr Menzie was called to give evidence. The passage I have quoted comes from a discussion at precisely that stage in the hearing.
The sixth omission asserted in the appellant's affidavit concerns comments said to have been made by Mr Mackie between witnesses. The appellant says that Mr Mackie called him a liar several times, but that that is not in the transcript or the audio. Certainly nothing of that nature is recorded in the transcript. When Mr Mackie cross-examined the appellant he asked him several times whether, if what he said was correct, the complainant was a liar. He also asked him whether two other witnesses were liars. The appellant may have been thinking of those questions.
In her affidavit, the appellant's wife said that after a witness named Anita Clay had given her evidence Mr Mackie raised his voice and told the tribunal member multiple times that the appellant was a liar. This certainly does not appear in the transcript. The appellant contends that he was not allowed to make comments during the hearing, but that Mr Mackie was permitted to do so on this occasion.
In his written submissions, the appellant asserted that there was a passage missing from his cross-examination of the complainant. She said that she saw her general practitioner, Dr Baird, the day after the defamation letter was received, but Dr Baird's records established that she did not see her until several days after that event. The appellant submitted, "Ms Orchard got very upset on the stand when she got caught out in this lie (Missing from Audio)." The transcript records the complainant as saying, "To be honest I'm not specifically sure of what – in – what exact day, but, like, that – I went to the doctor and to the counsellor." The transcript shows that the complainant then started to ask a question, but was interrupted by the tribunal member.
Honest witnesses often make mistakes as to dates. If the complainant gave incorrect evidence as to the timing of her first visit to Dr Baird, that has no real significance in relation to the assessment of her credibility.
The suggestion that the transcript and the audio recording were tampered with is a very serious one. If that happened, the person or persons responsible would probably be guilty of the crime of perverting justice, contrary to s 105 of the Criminal Code. The only evidence of tampering comes from the appellant and his wife. It appears that they were relying on their memories, rather than notes taken during the hearing. The transcript passages relating to the defamation case, the third rebuke of Mrs Higgins, and the discussion before the evidence of Mr Menzie all suggest that their memories could well be inaccurate. Ms Marriott's evidence is absolutely inconsistent with the allegations of tampering.
In addition to all of that, the suggestion that the transcript and audio recording were tampered with in the ways suggested simply does not make sense. If any public officer was minded to tamper with the transcript and sound recording with a view to strengthening the complainant's position and disadvantaging the appellant, it would make no sense to remove material of little or no significance. Information that the tribunal does not give legal advice to litigants, comments about Mrs Higgins' conduct during the hearing, her words to her husband, Jessica Smith's statutory declaration, Mr Mackie's comments about the case being a credibility case, references to cases thought to be relevant, assertions that the appellant was called a liar during the hearing, rather than in closing submissions, and the demeanour of the complainant when the timing of her first visit to Dr Baird was discussed, separately and collectively, are matters of unimportance. I am satisfied that neither the transcript nor the audio recording has been tampered with. The appellant and his wife must have been mistaken.

Submissions concerning the hearing

According to the appellant's written submissions, two other things that happened during the hearing indicated actual or possible bias on the part of the learned tribunal member. First when Mr Menzie was giving evidence, the appellant asked him who took over his delivery run after he left, but the learned tribunal member disallowed his question as irrelevant. Later, when the appellant was giving evidence, Mr Mackie asked him who took over the run and his question was not disallowed. However, by the time of the appellant's cross-examination, it had emerged that he believed that the management of Toll had become involved in making false allegations against him so that he could be replaced by Mr Menzie's brother. In that tenuous way, the identity of the replacement driver was potentially of peripheral significance in the proceedings.
Secondly, the appellant asserts that the learned tribunal member during the hearing asked the complainant's counsel about the quantum of her claim, and that this indicated that she had already made up her mind that compensation would be awarded. I have not been able to locate the discussion referred to in the transcript. In cases of this nature, the tribunal needs to deal not only with questions as to whether factual allegations are substantiated, but also with issues relevant to the quantum of compensation, if it is to be awarded. Discussing matters relevant to the assessment of compensation is not an indication of prejudgment.

After the hearing

After the hearing, Mr Mackie made his written submissions to the tribunal first, and the appellant responded to them. In his submissions the appellant asserted that Mr Mackie had misrepresented the evidence of witnesses in seven respects, and that he should be "held accountable" under s 105 of the Act. That section makes it a summary offence, punishable by a fine, for a person, in connection with any matter referred to in the Act, to make a statement knowing it to be false or misleading or to omit any matter from a statement knowing that, without that matter, the statement is misleading. The appellant contends that his submission was ignored by the learned tribunal member and that that is an indication of bias. However the tribunal does not have any power to deal with a person for a contravention of s 105. That can only be done in a prosecution before a magistrate. The only appropriate course was for the learned tribunal member to analyse the evidence as to the facts, assisted by submissions from both sides. That is what she did. There was no indication of bias in her failing to comment on the submission that Mr Mackie had contravened s 105.
The appellant contends that the award of compensation was so high that the learned tribunal member must have been biased against him and seeking to punish him, rather than to compensate the complainant for "loss or injury" pursuant to s 89(1)(d) of the Act. I reject that submission. The sum awarded was not disproportionate to the suffering described by the complainant and other witnesses. Even if the award of compensation had been excessive, that would not warrant an inference that the learned tribunal member was biased rather than acting in good faith.

Conclusion as to bias and apprehended bias

There is nothing in the transcript of the hearing that would tend to suggest any possibility of bias. On the contrary, there is much to indicate that the learned tribunal member was even handed. It is true that there were times when she made comments that the appellant and his wife would not have welcomed. However there were other comments that the complainant and her counsel would not have welcomed. At one point she told the complainant not to make comments. Later she told her not to try to guess why a question had been asked. On a few occasions she prevented Mr Mackie from asking inappropriate questions, such as questions to witnesses about someone's motives. On a couple of occasions she corrected Mr Mackie when he started to ask questions that contained incorrect details as to evidence that had been given. Finally, when she made her decision, she rejected substantial parts of the complainant's case. In her reasons at [271] she rejected a submission that the appellant had engaged in prohibited conduct contrary to s 17(1) of the Act. Then, at [273]-[290], she considered and rejected a submission that the appellant was guilty of victimisation, contrary to s 18 of the Act.
In his written submissions the appellant made an assertion to the effect that the learned tribunal member had published inappropriate feminist material on Facebook. That allegation was not pursued at the hearing. The appellant did not mention it at the hearing. He did not adduce any evidence about anything published on Facebook. He annexed a variety of documents to his written submissions, including a page that purported to reproduce material published on Facebook. During the hearing of the appeal I asked him what pages from that material he wished to rely on. He identified a number of pages including, for example, Jessica Smith's statutory declaration, but did not seek to rely on the page relating to Facebook. The result is that I have no evidence that would suggest that the learned tribunal member might have published anything that might have indicated a possibility of bias.
For the reasons stated, I reject all of the appellant's submissions as to bias and apprehended bias. Each of his submissions was either unsubstantiated or misconceived. He was far too ready to interpret quite ordinary comments and rulings by the learned tribunal member as indications of bias.

Denial of procedural fairness

Two of the appellant's grounds of appeal relate to this issue. As I have said, new ground 1 asserts a denial of natural justice, suggesting a denial of procedural fairness. New ground 5 reads as follows:
"Was denied the right to call witnesses that I wanted but in the Tribunal Orders it said that I failed to make a connection between Sanity and Toll, but were [sic] denied the right to question the people involved. Thus denied a right to defend myself. EA Charter of Fundamental Rights Article 48 'Everyone who has been charged shall be presumed innocent until proved guilty according to law. 2 Respect for the rights of the defence of anyone who has been charged shall be guaranteed'."
That ground refers to the learned tribunal member's decision of 12 February 2020, which I referred to at [18] and [19] above, when she refused to issue witness notices to two named individuals, an undefined group of "Sanity representatives" and a vaguely defined group of "Toll representatives".
The respondent sought to have a witness notice issued to a man named Toby Turner. There was evidence that Mr Turner had once told Ms Vienna-Hallam of Sanity that the appellant had previously been taken off a delivery run because of a similar complaint by another young girl. The appellant did not dispute that the previous complaint had been made, but contended that the previous allegations were false, and wanted to cross-examine Mr Turner about his motives. Any evidence that Mr Turner could have given on that subject was rightly seen as irrelevant to the issues as to the appellant's conduct towards the complainant. The learned tribunal member refused to issue a witness notice to Mr Turner on that basis. It was reasonable for her to do so.
The other named individual for whom the appellant sought a witness notice was Damian Sloan. Mr Sloan held a managerial position with Toll. The appellant wanted to ask him questions about Toll's response to the complaint about him, what investigation was undertaken, what conclusions he came to, why he did not receive particular material that he requested, what occurred during conciliation meetings, and why Mr Sloan did not tell him that Sanity only wanted him to drop his defamation claim. The learned tribunal member rightly concluded that evidence from Mr Sloan would not assist her in determining the principal facts in issue.
The appellant sought the issue of a witness notice addressed to "Sanity representatives" without identifying any individual Sanity employees. The learned tribunal member refused to issue such a notice for a number of reasons. First, the appellant indicated that he wanted to question individuals from Sanity about a conciliation conference and about communications with legal practitioners. However such matters were the subject of privilege. The principal subject of his proposed questioning appeared to be the complaints process undertaken by Sanity and the conduct of that company in relation to the allegations of inappropriate conduct by him, but those matters would not have assisted the tribunal in determining the facts. It was appropriate in the circumstances for the learned tribunal member to refuse to issue a notice addressed to anyone from Sanity.
The appellant identified four individuals when he requested that a witness notice issue to "Toll representatives involved in this Complaint including Kathleen Newbury, Emilia Cvetkovic, John Slatter and Karleen from HR Toll". He wanted to question those people, and unspecified others from Toll, about the management of the complaint about him by Toll, and their treatment of him in relation to the complaint. Again, the learned tribunal member rightly concluded that the proposed questioning would not assist her in determining the facts in issue.

In his written submissions relating to this appeal. The appellant complained that he was never given details of the original allegations that were made about him to Toll. Mr Menzie, who was the State Manager of Toll, gave evidence about a meeting at the Toll depot on 1 September 2017 attended by the appellant, Anita Clay from Sanity, and himself. He said he told the appellant that there was a harassment complaint against him, that he was stood down until further notice, and that an investigation was happening. He said that at that meeting he did not give the appellant any information as to the allegations against him, except that the complaint was about harassment. The appellant says that he has never seen the email to Toll containing the allegations against him. Toll was served with a notice requiring the production of his employment records, but the email containing the original allegations was not in the records that were produced.
The tribunal's duty "to observe the rules of natural justice", imposed by s 77(4)(a) of the Act, required it to observe procedural fairness. That duty required the tribunal to give the appellant reasonable notice of the allegations made by the complainant about him in her complaint. It did that. The requirement of procedural fairness also meant that the tribunal had a duty to give the appellant opportunities to cross-examine the complainant and her witnesses, to give evidence contradicting hers, to call witnesses, and to make submissions, particularly submissions as to why the complaint should be dismissed. It did all those things too. The question that now arises is whether the duty of procedural fairness required the tribunal to go further than it did in relation to the production of documents by Toll, and to take any additional steps for the purpose of compelling the production of the email that led to the appellant being stood down so that he could see what allegations were made to Toll at that stage about his conduct towards the complainant. If that document was available for production, there is some possibility that it might have contained allegations inconsistent with the account given by the complainant to the Tribunal. Any such inconsistency might have enabled the appellant to ask questions with a view to challenging the complainant's credibility. Whether the production of the email would have assisted the appellant in that way or not can only be a matter of speculation.
The tribunal's duty of procedural fairness did not require it to pursue every line of inquiry in connection with the factual issues that it had to determine. Given that Toll had made substantial disclosure of its records relating to the appellant, and given that nothing was known as to the availability or contents of the email in question, it cannot be said that it was of such importance that the tribunal had a duty to take any further step with a view to arranging its production and inspection.
I have covered all of the appellant's submissions relating to procedural fairness. The tribunal did not breach its duty of procedural fairness by refusing to issue witness notices to individuals whose evidence would have been irrelevant, nor by taking any further step for the purpose of securing the production of the missing email.

Orders inconsistent with the evidence

New ground 3 relates to this issue. It reads as follows:
"The Tribunal Member's Orders did not match the actual evidence given. (Anti discrimination Act 1998 105b)."
Section 105 of the Act reads as follows:
"A person, in connection with any matter referred to in this Act, must not –
(a)make a statement knowing it to be false or misleading; or
(b)omit any matter from a statement knowing that without that matter the statement is misleading.
Penalty: Fine not exceeding 10 penalty units."
That section has nothing to do with the submissions made by the appellant in relation to this ground. His written submissions contain 12 pages of argument in relation to this ground. He contends that a variety of findings and comments in the reasons of the learned tribunal member were incorrect or inappropriate. I will have to deal with them one by one.
The first submission relating to this ground concerns the dropping of a complaint made by the management of Sanity to John Slatter, Toll's key account manager responsible for the Sanity stores, on 1 September 2017. The complaint was initiated by Ashlee Wood, the area manager of Sanity. She spoke to Kelly Gilchrist, Sanity's State manager for Victoria and Tasmania about the appellant's behaviour towards the complainant. Ms Gilchrist contacted Sanity's general manager, product and operations, Mr Apostolas. After that a complaint was forwarded to Mr Slatter of Toll. He directed Mr Menzie to investigate the complaint. That led to the meeting between Mr Menzie, Ms Clay and the appellant. Later that day the appellant's wife phoned the Sanity store and spoke to another staff member, Jessica Smith. At some stage Ashlee Wood phoned the complainant and told her that a complaint had been made to Toll, but the complainant said, "I don't want a complaint." In her evidence the complainant said that she did not know about the phone call by the appellant's wife to Jessica Smith at the stage when she spoke to Ashlee Wood.
In her reasons at [8](m), the learned tribunal member said, "Following the contact from Mrs Higgins, the complainant asked for the complaint to be discontinued". The appellant contends that that was a finding that was inconsistent with the evidence. The evidence was to the effect that the complaint was discontinued on the initiative of the complainant, and not as the result of any request or exertion of influence by the appellant's wife. However that point has no significance at all. The comment at [8](m) might have been somewhat misleading, but the learned tribunal member did not make a mistake as to the facts about the dropping of the complaint. In her reasons at [57] she correctly summarised the complainant's evidence to the effect that she told Ms Wood that she did not want to make a complaint, and that she did not then know that the appellant's wife had rung the store.
The appellant's second submissions relating to this ground concerns evidence that Ashlee Wood had a partner named Toby who worked at Toll. In her reasons at [266], the learned tribunal member rejected a submission by the appellant to the effect that the allegations against him had been fabricated to assist Toll in removing him or terminating his employment. In that paragraph she said:
"No cogent evidence was given to that effect and certainly there was no suggestion of any prior relationship between staff at Toll or [sic] staff at Sanity that would suggest that an opportunity to fabricate such an allegation could arise."
Unfortunately she overlooked evidence from both the complainant and Ms Vienna-Hallam that Ms Wood had a partner who worked at Toll. Apparently that partner was Toby Turner, one of the people to whom the appellant wanted a witness notice issued. Ms Vienna-Hallam gave evidence that she had a conversation with Ms Wood at Ms Wood's home about the allegations, and that her partner, Toby, said that it was not the first time that such a complaint had been made. I do not regard this evidence as significant. If the learned tribunal member had been alert to the evidence about Ms Wood's partner working for Toll, I cannot see how that might have made any difference to the outcome of the proceedings. The idea that people at Toll wanted to get rid of him seems to be based on speculation on the part of the appellant, rather than evidence.
The appellant's third submission in relation to this ground relates to findings made by the learned tribunal member in her reasons at [267], in a passage quoted at [4] above, as to him "favouring" the complainant and asking how her boyfriend was. The appellant points out that such things are not against the law. That is true, but the learned tribunal member was simply making findings as to background facts. The point made by the appellant is of no significance.
His fourth submission in relation to this ground relates to conversation about the complainant's boyfriend and the evidence about him calling the complainant "Juicy Lucy". The complainant gave evidence that he used to ask how her boyfriend was, however her partner gave evidence that she told him that the appellant was "always asking if she had a boyfriend [and] if she still had a boyfriend". Apparently the complainant said in the complaint that the appellant repeatedly asked her whether she had a boyfriend. It is true that these inconsistencies are matters that the learned tribunal member could have taken into account in assessing the complainant's credibility, but I do not regard such minor inconsistencies as significant.
In her reasons at [269] the learned tribunal member said, "The Tribunal finds that there was nothing overtly sexual contained in the statement Juicy Lucy. However, the context in which those comments were made gives them that flavour."
The appellant submitted that there was no information as to the context in which those words were allegedly spoken, or how they were said. There may well have been no evidence as to how they were said, but there was ample evidence of their context. They were used repeatedly by the appellant to a woman much younger than himself, in whom he had been taking an interest before he slapped her on the bottom. It was reasonably open to the learned tribunal member to make the finding that they had a sexual flavour. To be blunt, one could reasonably infer that he was referring to vaginal juices.
The appellant's fifth submission as to this ground related to the complainant's witnesses not having seen inappropriate behaviour on his part. Six witnesses who worked at Sanity gave evidence to that effect. In her reasons at [270], the learned tribunal member concluded that a reasonable person would have anticipated that the complainant would have been offended and/or humiliated by the appellant's behaviour. The appellant has sought to impugn that finding by pointing to the fact that six witnesses saw no inappropriate behaviour. His submission was illogical. It was open to the learned tribunal member to make that finding. It concerned what a hypothetical reasonable person would have thought, not what fellow employees might have concluded on the basis of their observations.
The appellant's sixth submission in relation to this ground concerns the learned tribunal member's rejection of the argument that his conduct constituted prohibited conduct contrary to s 17(1) of the Act. The complainant's counsel had submitted that the appellant's conduct contravened that provision, implying that it offended, humiliated, intimidated, insulted or ridiculed the complainant on the basis of her age and/or her gender. In her reasons at [271], the learned tribunal member said:
"It is not readily apparent how the conduct complained of was done by reference to the attributes of [sic] age or gender. The only connection identified was that the complainant was in fact female and younger than the respondent. This is not sufficient to establish the necessary connection."
The appellant submitted that this was inconsistent with a finding at [270], where the learned tribunal member took into account the age disparity. That paragraph reads as follows:
"The Tribunal is also comfortably satisfied that a reasonable person, having regard to all the circumstances, including the age disparity between the complainant and the respondent, that the complainant had not discouraged the behaviour engaged in by the respondent and had asked him to ceased calling her Juicy Lucy, such that a reasonable person would have anticipated that the complainant would be offended and/or humiliated by the behaviour."
There is no inconsistency. Section 17(1) would have been contravened if the appellant had made offensive or insulting remarks about the complainant being young or female. That is not what he did. But in deciding whether he had sexually harassed the complainant, it was relevant for the learned tribunal member to take into account the difference in their ages when considering whether a reasonable person would have anticipated that the complainant would be offended or humiliated.
The appellant's seventh submission in relation to this ground related to the complainant's mental health. He submitted that the complainant had been exaggerating. There was evidence from the complainant's general practitioner, Dr Baird, that she had seen her five times from her first visit on 13 November 2017 until the hearing in March 2020, and that a fellow practitioner had seen her on one other occasion. However the complainant estimated that she had seen Dr Baird every two or three months. As I have said, the complainant said that she went to see Dr Baird on the day after the defamation letter was received, but the evidence established that the defamation letter was received on 7 November 2017, and that the complainant first saw Dr Baird on 13 November 2017. Also, the complainant said in a statement that Dr Baird gave her a referral to a counsellor for the following day, but in her evidence she explained that she had to go on a waiting list to see a counsellor.
These matters are trivial and inconsequential. There was ample evidence that the complainant was troubled by symptoms of anxiety and depression. There is no reason to think that she was exaggerating.
The eighth submission of the appellant in relation to this ground is a repetition of the seventh.
The ninth submission of the appellant in relation to this ground concerns a comment made by the learned tribunal member in her reasons at [324] in relation to her award of $45,000 as compensation. She said, "Such an award is reflective of the need to advance the public policy behind the Act and discourage breaches of its provisions." The appellant contends that that was a political statement, and that it shows that the order was made for the purpose of punishing him, not for the purpose of compensating the complainant.
The tribunal has the power, under s 89(1)(d) of the Act, to order a respondent to pay "an amount that the Tribunal thinks appropriate as compensation for any loss or injury suffered by the complainant and caused by the respondent's … prohibited conduct". The tribunal does not have the power to order a respondent to make a payment akin to a payment of punitive or exemplary damages: Burton v Houston [2004] TASSC 57 at [28]. Offenders may be punished by the imposition of fines pursuant to s 89(1)(e) of the Act but not by the award of compensation.
At [324] the learned tribunal member went on to say this about her award of $45,000:
"It also recognises the extent of the injury incurred by the complainant, particularly as a consequence of the aggravating conduct engaged in by the respondent subsequent to his behaviour being exposed to his employers."
In my view the sentence focussed upon by the appellant was no more than an observation, and an appropriate one, about the impact of an appropriate award in advancing public policy and discouraging breaches of the Act's provisions. The award of $45,000 was not so generous as to compel a conclusion that it was intended not just to compensate the complainant, but to go beyond mere compensation and act as a punishment for the appellant and a deterrent to others.
The appellant's tenth submission in relation to this ground relates to a comment made by the learned tribunal member in her reasons at [266]. The appellant had submitted that the complainant, having made a false allegation, persisted with the allegation in order to avoid the consequences foreshadowed in the defamation letter. The learned tribunal member rejected that suggestion, saying:
"That suggestion simply fails to explain why it was that the complainant made consistent comments about the respondent's behaviour towards her to those she worked with and who were close to her from as early as 2014."
The appellant submitted that the reason for that consistency was that all of the complainant's witnesses, apart from the doctor, were close friends with her, not independent, and biased. He made the same submission in his closing submissions to the tribunal. The learned tribunal member had the advantage of seeing the witnesses and observing how they gave their evidence. There is no reason for me to take a different view as to the reliability of their evidence.
The eleventh submission made by the appellant in relation to this ground concerns a comment made by the learned tribunal member in her reasons at [183]. In the first paragraph of the defamation letter, the appellant's solicitor said that the complainant had made a statement that he sexually assaulted her by grabbing her on the backside. The complainant's evidence was that he had slapped her on the buttocks, not grabbed her. At [183] the learned tribunal member said:
"If the respondent was told that the allegation was that he had grabbed the complainant on the buttocks, it was not as a result of anything that had been communicated by the complainant or any Sanity staff."
In Dr Baird's report, which was an exhibit in the tribunal proceedings, she referred to the complainant being "very upset about the incident when he grabbed her on the buttock in 2014". The appellant submitted that the learned tribunal member completely ignored this piece of evidence, and that it showed that the allegation changed from grabbing to slapping, indicating unreliability. In Dr Baird's evidence-in-chief she conceded that her patient could have said either "slapped" or "grabbed". The learned tribunal member noted that in her reasons at [190]. The submission that she completely ignored this piece of evidence was misconceived.
The twelfth and final submission made by the appellant in relation to this ground concerns a comment by the learned tribunal member in her reasons at [322]. She said this:
"The worst aspects of the sexual harassment of the complainant occurred over a period of some months in 2014. Thereafter, there was some continuation of the favouring behaviour and questioning about the complainant's boyfriend but no repeat of unwanted physical conduct or name calling."
The appellant submitted that that last sentence was inconsistent with evidence given by the complainant to the effect that, after the incident when he slapped her, she made an arrangement to purchase Avon products from him for her mother, and they would talk about Avon instead of other things. That submission was misleading. The complainant gave evidence that, after the slapping incident, his behaviour was just as it was before that incident, except that he did not touch her again or call her "Juicy Lucy" again. She said that he would ask how her boyfriend was, and that his language did not moderate hugely. In Dr Baird's report, she wrote that, after the slapping incident and the rearrangement of the complainant's work, the appellant "was able to continue making sexual innuendos towards her". The finding about "continuation of the favouring behaviour and questioning about the complainant's boyfriend" was open to the learned tribunal member and consistent with the evidence.
In an appeal of this nature, a judge has the power to substitute his or her own findings of fact for those of the tribunal. Most of the appellant's submissions in relation to this ground involved attacks on findings of fact made by the learned tribunal member. I am not persuaded that any of the impugned findings of fact should be overturned.

Double dipping

Ground 1 relates to this issue. It reads as follows:
"The Tribunal erred in fact and in law in failing to take into account a relevant consideration, namely, that the Respondent had received compensation from the former employer of the Appellant in respect of the same conduct, namely, the Respondent's breach of section 17 (2) of the Act."

It is common ground that the complainant made complaints to the Anti-Discrimination Commissioner about both the appellant and Toll, and that the complaint against Toll was discontinued before the tribunal hearing. There was no evidence before the learned tribunal member as to whether or not the complainant had received any compensation from Toll. The appellant could have asked her about that in cross-examination, but did not. In his written submissions to the tribunal, the appellant said, "It should be noted here that Ms Orchard has already had a settlement from Toll." No further comment was made about any such settlement. I have no evidence as to what amount, if any, the complainant received from Toll, nor did the learned tribunal member.
This ground can only succeed if the learned tribunal member, whose role was to conduct an "inquiry", had an inquisitorial duty that required her to find out what amount, if any, the complainant had received from Toll. The relevant provisions of the Act are as follows:
· In s 3, "inquiry" is defined to mean "an inquiry held under Division 4 of Part 6".
· By virtue of s 13(a), one of the functions of the tribunal is "to conduct an inquiry into a complaint".
· Sections 69-71 of the Act provide for a complaint to be investigated by the Anti-Discrimination Commissioner or an authorised person.
· After an investigation, s 78(1) empowers the Commissioner or an authorised person to "refer a complaint for inquiry" in certain circumstances. By implication, the complaint is referred to the tribunal.
· Division 4 of Part 6 of the Act comprises ss 78-96. Those sections deal with inquiries by the tribunal.
· Section 86(1) requires the tribunal "to conduct an inquiry with as little formality and as expeditiously as the requirements of this Act and a proper consideration of the matters before the Tribunal permit".
· By virtue of s 87(4), the tribunal is not bound by the rules of evidence, is required to observe the rules of natural justice, and may inform itself on any matter as it thinks fit.
· Section 89(1) provides that if the tribunal "finds after an inquiry that a complaint is substantiated", it may make one or more of various types of orders. By virtue of s 89(1)(d), one possible order is "an order that the respondent must pay to the complainant, within a specified period, an amount the Tribunal thinks appropriate as compensation for any loss or injury suffered by the complainant and caused by the respondent's discrimination or prohibited conduct".
Because of the use of the word "inquiry", it may be that the tribunal sometimes has inquisitorial duties. In Division 4 of Part 6 there are provisions for complainants and respondents to participate in an inquiry, with rights to representation by counsel. The relevant sections contemplate the tribunal receiving oral and documentary evidence and issuing notices requiring the attendance of witnesses or the production of documents. In many respects an inquiry is therefore likely to resemble an adversarial court proceeding. However it remains an inquiry, and arguably circumstances can arise in which the tribunal should take on an inquisitorial role.
There used to be similar provisions relating to inquiries in the Disability Discrimination Act 1992 (Cth) and the Racial Discrimination Act 1975 (Cth). In Soares v Human Rights and Equal Opportunity Commission (1998) 53 ALD 74 a commissioner had refused to adjourn an inquiry and had proceeded with it in the complainant's absence. In judicial review proceedings in the Federal Court, it was argued that she had breached her duty of procedural fairness by not calling two witnesses of her own motion. Tamberlin J concluded, at 82, that there was no indication that the two suggested witnesses could give any further evidence which would assist the complainant's case, and that it was therefore not necessary, as a matter of procedural fairness, for the commission to summons them. At 79 he referred to statutory provisions whereby the commission was not bound by the rules of evidence, could inform itself on any matter as it thought fit, and was required to conduct an inquiry with as little formality and technicality and with as much expedition as the requirements of the legislation and a proper consideration of matters before it permitted. He said:
"This latter requirement makes it clear that a balance is to be struck between an expeditious inquiry and a full consideration of the matters before the commission."
Questions as to whether and when statutory tribunals have a duty to undertake inquiries in a way normally associated with inquisitorial justice can be very difficult. See Groves, The Duty to Inquire in Tribunal Proceedings (2011) 33 Sydney Law Review 177. In cases relating to reviews conducted by the Refugee Review Tribunal, the High Court has left open the possibility that that tribunal might have a duty to make particular inquiries in particular circumstances: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39, 259 ALR 429 at [25]; Minister for Immigration and Citizenship v SZGUR [2011] HCA 1, 241 CLR 594 at [22].
In this case, the opening words of s 89(1) of the Act are of critical importance. An order for compensation may only be made if "the tribunal finds after an inquiry that a complaint is substantiated". Those words make it clear that an inquiry is conducted for the purpose of determining whether the allegations contained in a complaint are substantiated. The assessment of compensation is something that can only occur after the inquiry is completed and after the tribunal has subsequently made a finding that one or more allegations are substantiated. It may be that evidence relevant to the assessment of compensation is presented in the course of the inquiry, consistently with the tribunal's obligations under s 86(1) to proceed with little formality and expeditiously. The tribunal may very well have a duty to take on an inquisitorial role when appropriate during an inquiry as to evidence directly relating to the allegations contained in a complaint, but, at least as a general rule, issues relating to the assessment of compensation cannot be the subject of a duty to inquire. It is a matter for the parties to present evidence and question witnesses as to matters relevant to the assessment of compensation.
The appellant's comment about the complainant having received a "settlement from Toll" was made in a single sentence in the middle of 21 pages of generally unmeritorious submissions. As a matter of law, inclusion of that sentence in the appellant's submissions could not give rise to a duty on the part of the learned tribunal member to inquire as to the existence and nature of the asserted settlement. The opportunity to present evidence as to such a settlement has passed. The learned tribunal member had a discretion to make an award of compensation. She chose to exercise that discretion in favour of the complainant. In assessing the compensation, she was obliged to do the best she could, but not to initiate a further inquiry. Ground 1 must therefore fail.

Aggravated damages

Ground 2 of the notice of appeal asserts that the award of aggravated damages in an amount of $20,000 was manifestly excessive.
Aggravated damages may be awarded in a tort case to compensate a plaintiff for increased mental suffering resulting from the manner in which a defendant has behaved in committing the tort or thereafter: Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44. When the tribunal awards compensation to a complainant under s 89(1)(d) of the Act for loss or injury caused by a respondent's discrimination or prohibited conduct, compensation may be awarded for injury to personal feelings: Alders International Pty Ltd v Anstee (1986) 5 NSWLR 47 at 65; Burton v Houston (above) at [27]. The award of compensation may include a component in the nature of aggravated damages: Spencer v Dowling [1997] 2 VR 127 per Winneke P, with whom Callaway JA agreed, at 144-145; Burton v Houston (above) at [29]-[31]. Compensation in the nature of aggravated damages is only available in respect of suffering to which the original prohibited conduct or discrimination was a contributing causative factor since s 89(1)(d) only applies in relation to "loss or injury … caused by the respondent's discrimination or prohibited conduct".
In her reasons at [323], the learned tribunal member identified the defamation letter as the "principal aggravating feature" warranting an award of compensation in the nature of aggravated damages. On the basis of her findings of fact, other aggravating features can be identified, as follows:
·     The appellant continued to call the complainant "Juicy Lucy" on occasions after she and her manager had told him to stop.
·     He told her not to tell her boss about slapping her on the bottom.
·     He taunted her about the slapping, laughing at her and asking her, "Have you told your boss yet?"
·     He did not ever acknowledge or apologise for his behaviour.
The aggravating features relating to the defamation letter included the following:
·     The fact that the letter was sent by a legal practitioner to a woman in her early 20s created a power imbalance situation, leading to feelings of anxiety, distress and intimidation on the part of the complainant.
·     The letter was sent to her workplace, creating a potential for embarrassment.
·     The appellant's solicitor demanded a written retraction, a letter of apology, and a payment of $30,000, which was likely to be beyond her means.
·     The letter accused the complainant of injuring the appellant's credit and reputation, causing him to lose his job, causing him financial loss, and damaging his relationships with family members and colleagues.
·     The letter included a threat to commence proceedings for defamation.
The learned tribunal member made observations relating to matters of aggravation in her reasons at [314]-[318]. Those paragraphs, omitting comparisons with other cases, read as follows:
"314     What is also apparent is that the principal events that significantly and adversely affected the complainant's emotional wellbeing flowed from the escalation of the complaint to Toll and the receipt of the defamation letter in November 2017. The Tribunal accepts the evidence of Dr Baird as to the impact she has observed and of the other witnesses in this respect. The receipt of the letter induced a great deal of distress, necessitated leave from work and treatment from a health professional. Ongoing participation in these proceedings has had its own contribution to the complainant's ability to put the matter behind her.
315     … the complainant has required treatment for her mental health, particularly her symptoms of depression (described by Dr Baird as mild) and anxiety. The anxiety symptoms have been particularly evident and persistent. The evidence falls short of diagnosing a specific mental health condition as opposed to identifying a cluster of symptoms.
316 The Tribunal has not found that sending the defamation letter amounted to an act of victimisation contrary to the Act. The Tribunal does, however, regard it as an aggravating feature that is directly related to the respondent's behaviour and aggravates his misconduct in the way described by Blow J (as he then was) in Burton. As the respondent himself conceded in cross-examination, it is disgraceful to send a letter to a young woman demanding she retract her complaint, apologise and pay $30,000 in circumstances where the allegation was true.
317     ... The respondent's behaviour in the main ceased after the slap incident and did not include overt importuning of the complainant to engage in a sexual relationship with him. ... The Tribunal does accept that the complainant did have subsequent contact with the respondent but that she was not subjected to the same sort of behaviour when that occurred.
318     The evidence presented fell short of establishing with any degree of clarity that the complainant has suffered any loss of income as a result of the respondent's conduct. Dr Baird's evidence suggests likely ongoing negative sequelae, with some impact on the complainant's functioning likely for some time."
Dr Baird's evidence as to the condition of the complainant in November 2017 was summarised by the learned tribunal member in her reasons at [185], as follows:
"185 Dr Baird noted that the complainant had feelings of low self-worth as a direct result of the defamation claim. She did not know what to do and felt helpless as decisions had been made without her authority and the respondent had attempted to contact her on her mobile phone and had served the defamation claim against her. Her extreme symptoms of stress and anxiety included hypervigilance, insomnia, anorexia and restlessness. She was teary and emotional and experiencing mild symptoms of depression as well, including a sense of helplessness, worthlessness, anhedonia and low mood. Contemplating returning to work at Sanity exacerbated her symptoms. It was noted that her symptoms were much improved when she was not going to Eastlands which reduced the risk of seeing the respondent."
The last time that Dr Baird saw the complainant before the tribunal hearing was in December 2019. She summarised her condition in an email, which the learned tribunal member in turn summarised in her reasons at [188], as follows:
"188 In her email of 2 March 2020, Dr Baird indicated that she had consulted the complainant on a further three occasions regarding her distress and that she also saw one of Dr Baird's colleagues on another occasion. The complainant was noted to remain hypervigilant, anxious about her personal safety and had symptoms of anxiety and depression, including low energy, poor concentration and poor sleep. Dr Baird stated that the complainant's treatment included an anti-depressant, exercise, mindfulness and that she had been referred to a psychologist."
The receipt of the defamation letter, and the circumstances in which it was received, appear to have had an enormous impact on the complainant's ability to enjoy life. The receipt of that letter was a major contributing factor to her decision to leave Sanity and seek alternative employment, and to her psychological problems deteriorating to such an extent that she needed to seek professional help from general practitioners and a psychologist. The award of $20,000 in the nature of aggravated damages was clearly proportionate to the suffering contributed to by the various aggravating circumstances. It was not manifestly excessive. Ground 1 must fail.

An interlocutory application

I heard this appeal and reserved my decision on 23 June 2021. A couple of weeks later, on 9 July 2021, the appellant filed an interlocutory application, seeking an order that the hearing of the appeal be "reopened for further evidence". It appears that he wants the Court to compel the complainant to give oral evidence so that he can cross-examine her about a subpoena that was issued at his request on 13 May, about the alleged exaggeration of her health problems, and about matters relating to the defamation letter.
Any further cross-examination of the complainant would be absolutely inappropriate in this type of appeal. Different Acts of Parliament create different types of appeal. Sometimes, an appeal is by way of a new hearing, sometimes called a hearing de novo. For example, when a defendant appeals to a judge from a decision of a magistrate to refuse bail, s 21C of the Bail Act 1994 requires the appeal to be "by way of a new hearing". However this is an appeal under s 100(1) of the Act. It is the type of appeal that is best described as an appeal by way of rehearing on the papers. The Act is silent as to the nature of an appeal under s 100(1). However there are relevant provisions in the Supreme Court Civil Procedure Act 1932, s 6(3), and the Supreme Court Rules, rr 704 and 693, which compel the conclusion that a s 100(1) appeal is an appeal by way of rehearing, in which the appeal court may re-determine the factual issues, relying upon the material that was before the tribunal. The situation is precisely the same as that considered in Fernando v Medical Complaints Tribunal (No 2) [2003] TASSC 139, 12 Tas R 337, which concerned appeals from the Medical Complaints Tribunal.
A judge hearing such an appeal has a discretion, in an appropriate case, to receive additional evidence. The circumstances in which that discretion should be exercised were discussed by the Full Court in Fernando v Medical Complaints Tribunal [2004] TASSC 130, 12 Tas R 366. It was appropriate for me to receive additional evidence in relation to the appellant's contention that the audio recording and the transcript had been tampered with as I could not otherwise have adjudicated in relation to that issue.
The appellant wishes to cross-examine the complainant about the inconsistency between her evidence that she first saw Dr Baird on the day after she received the defamation letter, and the evidence of Dr Baird that she first saw the complainant on 13 November 2017, several days after the defamation letter was received. That inconsistency is of no consequence. It is plain that the complainant made a mistake about when she first saw the doctor. The power to receive fresh evidence should only be exercised in exceptional cases. The issue identified by the appellant is so insignificant that it does not warrant the exercise of the discretion to receive further evidence.
It appears that the appellant wants to call evidence relating to attempts to serve a subpoena on the complainant. At his request a subpoena addressed to her was issued on 13 May 2021. It required her to attend the hearing of the appeal, but she did not attend. A legal secretary employed by the complainant's solicitors has sworn an affidavit saying that the appellant gave her the subpoena on or about 31 May 2021 and asked her to "sign for service" of it, and that she did not know what that meant but signed a blank piece of paper for him. I do not know whether the subpoena came to the attention of the respondent's solicitor, Mr Mackie, or whether it was overlooked.
Rule 498(1) of the Supreme Court Rules provides, "A subpoena must be served personally on the addressee." However r 499(1) provides as follows:
"499 Compliance with subpoena
(1) Despite rule 498(1), an addressee must comply with the requirements of a subpoena even if it has not been served personally on that addressee if the addressee has, prior to the time for compliance with the subpoena, actual knowledge of the subpoena and of its requirements."
It is not clear whether the complainant knew about the subpoena before the hearing. Regardless of the state of knowledge of Mr Mackie and the complainant, it was absolutely inappropriate for the appellant to seek to compel her to attend the hearing of the appeal for the purpose of giving evidence. However he cannot be criticised for not understanding that.
In the circumstances, nothing can be gained by investigating who knew what about the issue and service of the subpoena. Any further information on that subject can make no difference to the outcome of this appeal.
For these reasons, the interlocutory application must be dismissed.

Disposition of the appeal

Every ground of appeal has failed. The appeal is dismissed.