Horman v Distribution Group Ltd

FEDERAL MAGISTRATES COURT OF AUSTRALIA

Horman v Distribution Group Limited [2001] FMCA 52

DISCRIMINATION – sexual harassment Sex Discrimination Act ss. 28A, 14(2)(d) – where the applicant initiated, participated in or encouraged certain behaviour, that does not prevent other behaviour directed towards or in the presence of the applicant being unwelcome and constituting harassment – applicant found not to be a witness of truth – some allegations accepted on corroboration by other witnesses – discrimination found – discrimination on grounds of pregnancy s. 7(1)(b) and (c) – not found – unlawful termination on the grounds of pregnancy – Sex Discrimination Act ss. 7 and 14 – not found – racial discrimination Racial Discrimination Act s. 18C – some allegations accepted – racial discrimination found

COSTS – where successful applicant’s misconduct lengthened the hearing – each party to pay own costs

Sex Discrimination Act 1984 (Cth) ss. 7, 7(1)(b) and (c), 14, 14(2)(d), 28A, 105, 106

Racial Discrimination Act 1975 (Cth) s. 18A, 18C

Donna Marie Shiels v Trevor Leighton James SZ3/2000, followed

L v M Ltd (1994) EOC 92-617, followed

Hall v A and A Sheiban Pty Limited (1989) 20 FCR 217, followed

Newcrest Mining (WA), BHP Minerals Limited v The Commonwealth of Australia, The Direction of National Parks and Wildlife (1993) FCA unreported, considered

Colgate Palmolive v Cussons (1993) 118 ALR 248, considered

Oshlack v Richmond River Council (1998) 193 CLR 72, considered

Lucas v Hillier and Carny (1999) SASC 128, considered

Applicant:Maevida Horman
Respondent:  Distribution Group Limited
File No:SZ 71 of 2001
Delivered on:  27 July 2001
Delivered at:  Sydney
Hearing Date:  4, 5, 6 June 2001, 18 July 2001
Judgment of:  Raphael FM

REPRESENTATION:

Counsel for the Applicant:             Ms Erin Glover
Solicitors for the Applicant:           Mr Robert Stephen
Counsel for the Respondent:     Mr Stephen Rushton SC
Solicitors for the Respondent:      Katrina Morris of Freehills

ORDERS

Claim under s.28A of the Sex Discrimination Act 1984 upheld in part.
Claim under s.14(2)(d) of the Sex Discrimination Act 1984 upheld in part.
Claim under s.7(1)(b) and (c) of the Sex Discrimination Act 1984 dismissed.
Claim in respect of unlawful termination in breach of ss. 7 and 14 of the Sex Discrimination Act 1984 dismissed.
Claim under s.18C of the Racial Discrimination Act 1975 upheld in part.
The respondent to pay the applicant the sum of $12,500.00 by way of damages .
Each party to pay its own costs of the proceedings.

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

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SZ 71 of 2001

MAEVIDA HORMAN

Applicant

And

DISTRIBUTION GROUP LIMITED

Respondent

REASONS FOR JUDGMENT

What is the nature of the dispute?

Between February and December 1997 the applicant worked for the respondent company at the Artarmon branch of its Repco Auto Parts business as a spare parts interpreter. She claims that during this time she was subjected to sexual discrimination in the form of unacceptable and inappropriate comments from her fellow workers, some physical approaches such as texta writing on her body, pulling of bra straps and touching of buttocks. She claims that these were unwelcome acts of harassment in breach of s.28A, and of detriment to an employee on the grounds of sex in breach of s.14(2)(d) of the Sex Discrimination Act, and that the respondent is vicariously liable for these acts under ss. 105 and 106 of the Sex Discrimination Act.
During the course of her employment the applicant became pregnant. She claims that she was subjected to discrimination because of her pregnancy contrary to s.7(1)(b) and (c), consisting of inappropriate comments made by other workers. She also claims that she was dismissed from Repco because she was pregnant, contrary to ss.7(1)(a) and 14 (2)(c) of the Sex Discrimination Act.
The applicant also complains of racial discrimination contrary to s. 18C of the Racial Discrimination Act through the use of words such as “wog” being written on time sheets and being referred to as a “witch”. She claims that the respondent is vicariously liable under s. 18A of the Racial Discrimination Act.
The applicant claims that on one occasion the effect of discriminatory words said to her by a member of staff at the Repco branch was a near miscarriage, and that the total of the acts of discrimination had severe psychological effects on her.
The respondent denies the allegations of sexual and racial discrimination, although it was conceded that some “horseplay” occurred in the workplace. The company alleges that the applicant was a willing participant and instigator of much of this activity. The respondent claims that the proceedings have been brought as a result of the applicant being declared redundant and are not bona fide. The respondent alleges that it has a properly constituted EEO policy and procedures and in the circumstances is not vicariously liable for the actions of its staff. The respondent alleges that the applicant did not follow the company procedures in place relating to discrimination, making no complaint during her employment.

What facts does the applicant rely on to establish her claim?

The applicant gave evidence by way of affidavit. Prior to the commencement of her client’s case Ms Glover for the applicant provided me with an outline of her opening address which contained in paragraph 5.34 onwards a detailed extract of the evidence in support of her client’s claim. I reproduce those paragraphs below without the identifying references save to note that they are all contained in the applicant’s affidavit of 9 May 2000.
Evidence in support of the claim of sexual harassment and discrimination in breach of s.28A of Sex Discrimination Act (Cth).
5.3.4.1.Occasionally when a representative called Amy, from Orion Truck Rental, would attend the premises Mr Chamberlin say in a loud voice: “I would love to fuck that”, I would like to stick my cock in her mouth and come over her face and tits.”
5.3.4.2. One of my work colleagues Mr Bernie Wong was asked on many occasions by Mr Chamberlin: “Would you like to be fucked up the arse by Richard and John?”
5.3.4.3.Mr McDougall pulled down the Applicant’s long pants and scribbled in felt tip pen on her lower part of her back.
5.3.4.4.Mr McDougall pinch the Applicant on the bottom on frequent occasions.
5.3.4.5.When the Applicant dropped something and bent to pick it up Mr Chamberlin, Mr Maulguet and Mr McDougall would say to me: “While you’re down there give one of the boys a head job.”
5.3.4.6.Gulio Grandinetti referred to the Applicant as “Fucking slut” “Fucking cunt”.
5.3.4.7.Jean-Pierre Maulguet asked the Applicant “Could you do a head job on Richard and pretend you are just eating a banana.”.
5.3.4.8.Richard Chamberlin asked the Applicant “Do your swallow and if you don’t would you like to?”
5.3.4.9.Richard Chamberlin whilst looking at the Applicant’s breasts stated, “They’re nice and firm aren’t they?”
5.3.4.10.Les McDougall made a remark “She’s a dog”, Oh look, a four legged dog. We have one of those here. Mav. Only she has two legs.”
5.3.4.11.Mr McDougall said to the Applicant: “Take off your clothing but leave your underwear on and parade outside in the carpark.”
5.3.4.12.Mr Chamberlin and Mr McDougall said to the Applicant” “Show me your tits.”.
5.3.4.13.Mr Chamberlin and Mr McDougall approached the Applicant and pulled back my bra strap and let it go.
5.3.4.14.When the Applicant was pregnant Mr Chamberlin and Mr Maulguet asked the Applicant “Are you more sexually active since being pregnant”, My wife is particularly with oral sex.”
The applicant’s evidence that the respondent discriminated against her on the grounds of her sex and pregnancy contrary to s.14(2) of the Sex Discrimination Act (Cth) during the term of her employment is also set out in the same document and reproduced here.
5.4.3.1.Les McDougall shouted at the Applicant “You stupid fucking bitch. You have mixed show room stock with store room stock.”
5.4.3.2.Les McDougall made a remark “She’s a dog”, “Oh look, a four legged dog. We have one of those here. Mav. Only she has two legs.”
5.4.3.3.“Women have no right working in the automotive sector. They are useless as two tits on a bull.” On another occasion I remember someone saying: “They should be at home, barefoot and pregnant, doing what they do best and not interfering with men’s work.”
5.4.3.4.“Stupid fucking bitch. You should not be working in the automotive business.”
Evidence in support of the claim for discrimination on the grounds of pregnancy contrary to s.7(1)(b)(c) of the Sex Discrimination Act (Cth) are similarly dealt with and repeated.
5.5.3.1.When the Applicant was pregnant Mr Chamberlin and Mr Maulguet asked the Applicant “Are you more sexually active since being pregnant”, “My wife is particularly with oral sex”.
5.5.3.2.Richard Chamberlin whilst looking at the Applicant’s breasts stated, “They’re nice and firm aren’t they?”.
The applicant also makes a claim for termination on the grounds of pregnancy contrary to ss.7 and 14 of the Sex Discrimination Act (Cth), the evidence of which is alleged to be as follows.
5.6.1.1.In July 1997 the Applicant was informed by her General Practitioner that she was pregnant.
5.6.1.2In November 1997 the Applicant approached Mr Chamberlin and enquired about maternity leave entitlements. Mr Chamberlin said words to the effect: “You haven’t been here long enough. You’ve missed out by one week.”
5.6.1.3Mr Chamberlin and Mr Maulguet said to the Applicant, “You won’t come back from your maternity leave.”
5.6.1.4The Applicant submitted her annual leave form on 15 December 1997. The Applicant was then dismissed on 15 December 1997 without notice. The Applicant was not provided with any reason for her dismissal.
Finally there is a claim in respect of offensive behaviour because of race pursuant to s.18C of the Racial Discrimination Act 1975 the evidence of which was extracted from the affidavit in the applicant’s document as follows.
5.7.3.1.Mr Chamberlin said” “But I can’t stand wogs. They should stay in their own country.”
5.7.3.2.Mr Chamberlin and Mr McDougall referred to Mr Wong as “Fucky sucky.”
5.7.3.3.Richard Chamberlin said, I am finally getting rid of that fucking wog.” Which was overhead by the Applicant whilst she was going upstairs, he was on the phone.
5.7.3.4.Mr McDougall referred to the Applicant as a “fucking dumb wog.”
5.7.3.5.Mr Grandinetti referred to Ms Horman as “half caste”, “wog bitch”, “slut.”
5.7.3.6.The word “wog” was entered in the time sheet next to the name of the Applicant.
Ms Horman also gave some additional information by way of oral evidence. She informed the court that she had enquired about maternity leave on a couple of occasions, the first being just after she fell pregnant and the second being in November. She says she spoke to Mr Chamberlin but he did not know what the rules and regulations were. He claimed that the applicant was a week off being entitled to maternity leave but the applicant claimed that that was incorrect as given her expected date of confinement she would have been employed more than one year at that time and therefore entitled to receive maternity leave.
The applicant gave evidence that on her final day in the office the manager Mr Chamberlin approached her about an annual leave form. He helped her complete the form which was to give her leave in January in order to move house. This appeared to have taken place in the morning. However, between 4.30 and 5.30 that evening which was a Monday her employment was terminated. She was not, she claims given any oral reason but she was provided with a letter from management which set out their decision to reduce staff at the Artarmon branch. She stated that she was not given any options of transfer or reduced hours nor was she given any counselling or warnings about her conduct at work. She stated that the termination had a very bad effect on her, things were very difficult, she had no job, she was pregnant, she had arranged to move into a new home and suddenly the money wasn’t coming in. As a result her husband, who had arranged to take a holiday, had to cash in his holiday pay in order to help towards payment of the stamp duty on the new house.
At this stage Ms Horman was asked a number of questions in reply to some of the affidavits filed on behalf of the respondents. I will deal with her responses at a later stage in these reasons.
The applicant called her husband in support. He had sworn an affidavit dated 28 March 2001 which was mostly responding to some of the matters raised by the respondents in the affidavits which they had filed.
The essence of Mr Horman’s evidence was that his wife did complain to him constantly about her treatment by other staff members at her workplace. He saw texta marks upon her frequently and he received verbal descriptions of various forms of insulting remarks made to her. The affidavit does not go into very much detail about this type of remark and when read appears to deal mostly with problems about lifting and handling stock, some of which was heavy. However, under examination he was slightly more forthcoming about other complaints. He stated that his wife told him they called her a “wog” a fair bit and a “slut”. He said that she was very anxious and that after the incident in which she was required to go to the doctor because of spotting he telephoned Mr Chamberlin and said he was sick of his wife coming home upset, tormented and harassed.
Mr Horman also confirmed that he and his wife used to travel home together to the Central Coast and that invariably they would leave the smash repair business at which he worked at approximately 5.00p.m. His wife would turn up at the smash repairers between 4.30 and 5.00 and wait for him. He was particularly firm that neither he nor his wife ever hung around on a Friday evening.
The applicant also tendered in support of her claim a number of documents. There were two reports from Dr Khoo (16.10.97 and 10.11.98) the first of which established that the applicant’s expected date of confinement was 15 March 1998. The second advised that she presented to the surgery in an agitated and worried state on 11 September 1997 complaining of a two day history of “per vagina” spotting of blood. She had given a history of an argument with her employer the day before that greatly upset her. There was a report from Dr David Butler dated 12 November 1998 which stated:
“She suffered from anxiety several years ago but then she was doing quite well until various problems at work last year led her to an exacerbation of her condition.”
This history was given to the doctor after the complaint to HREOC had been made.
There was a detailed medico-legal report prepared by Dr Leonard Lambeth dated 26 January 1999 and a management plan provided by the Central Coast Area Health Service.
In addition to these medical reports there are two holograph documents. The first is alleged to be a note left for the applicant by Ms Angela Gough, a copy of which appears below. The second is a foolscap piece of paper which was allegedly delivered to the applicant approximately three weeks ago which is also reproduced below.

What facts does the respondent dispute and how is that done?

The respondent called evidence from the following persons whose position is given next to their name. They each gave evidence by way of affidavit.
Mark Edwards, Automotive Parts Interpreter, formerly full time Driver with respondent.
Leslie John McDougall, Automotive Parts Interpreter employed by the respondent.
Jean-Pierre Maulguet, Assistant Store Manager at Artarmon Store.
Norman William Hardy, Zone Manager for respondent NSW and WA.
Richard Jeffrey Chamberlin, 2IC Artarmon Store February 1997 – August 1997, Store Manager at Artarmon August 1997 until after applicant was terminated.
Barry Kynoch-Kelly, Driver employed by respondent at Artarmon.
Angela Gough, Casual Driver and Sales Person employed by respondent.
Jeanette Rae Crane, Administrative Assistant employed by respondent.
Leon Hook, Store Manager Trainer at Artarmon February – August 1997.
Stephen William Brown, Human Resources Manager employed by respondent.
The evidence elicited by the respondent through these witnesses was intended to illustrate and prove the following propositions.
1That many of the specific incidents alleged by the applicant did not take place.
2That the letter allegedly written by the applicant to Mr Hardy at Repco Head Office was not written and/ or not received.
3That far from being offended by any incident of what was described as “tomfoolery” in the workplace, the applicant was an enthusiastic participant and instigator.
4That the applicant can not be believed upon her oath.
5That the respondent had in place a satisfactory EEO system which was intended to prevent conduct of the type alleged. The employees of the respondent were aware of their responsibilities under EEO, had undertaken appropriate training and acted responsibly. As a result, the respondent was not vicariously liable for any of the actions which may be proved against individual employees.
6The applicant was dismissed by reason of redundancy. Her dismissal had nothing whatsoever to do with her pregnancy or to do with her sex.
7That the respondent was not the subject of any racial taunts or abuse, that the use of the word “wog” in reference to the applicant (if it occurred at all) was in jest and with the full assent of the respondent.
At the end of the evidence counsel for the respondent tendered extracts from the medical notes of Dr Khoo dated 6 March 1997 and 13 October 1997, and an extract of medical notes of a Dr Reid.
It would unnecessarily lengthen this judgment if at this point I précised the affidavit evidence referred to above. It will in any event be necessary to refer to much of it greater detail in the next section.

Findings of fact

“Tribunals and Courts of Law are frequently asked to decide which of two versions of a series of facts they accept. It is often a very difficult task particularly where both witnesses are credible. The decisions are made with the benefit of a number of factors. Perhaps the most important is each witnesses’ demeanour in the witness box, his or her method of giving the evidence, the way questions are answered in cross-examination, the willingness to acknowledge the possibility of error and changes in recollection due to the passage of time. Other matters that would be looked at include the interest that the witness might have in the outcome of the proceedings and the inherent likeliness or unlikeliness of the evidence when considered with the background of the known facts. Finally, most Tribunals or Courts seek to find some form of corroboration from other evidence of whatever nature. The decision that is made is not always one between believing one witness and not believing another or holding that one witness is telling the truth and the other is lying. More often than not the decision comes down to the preference of one recollection over another. Recollection is notoriously unreliable.” (Donna Marie Shiels v Trevor Leighton James SZ3/2000, FM Raphael at 36)
In this case Mr Rushton SC mounted a thorough and penetrating attack upon the applicant’s credibility. He proceeded on two flanks. First he cross-examined the applicant at considerable length as to whether or not she told her fellow workers words to the effect of those deposed to by Mr McDougall:
“Well I haven’t got any pubic hair because it’s unclean. My mother taught me to shave it off.”
Or as deposed to by Mr Chamberlin:
“I don’t have any pubic hair. My mother taught me to shave it off because it’s unclean.”
Or in the affidavit of Barry Kynoch-Kelly:
“I squat down in the bath and shave my pubic hair with a mirror.”

Under cross-examination Ms Horman vehemently denied making any of these remarks. She also went further. She denied ever shaving her pubic hair. She said:
“I don’t shave my pubic hair. I never have, I never will.”
She maintained that position even when Mr Rushton showed her the medical notes of Dr Khoo. These notes reveal on 6 March 1997 she attended the doctor complaining of nausea and slight abdominal pain and requesting a pregnancy test. The notes reveal “small LN left vaginal area. Did shave pubic hair”.
Ms Horman was unable to provide any explanation for this comment made by Dr Khoo except to continue to deny that she ever shaved her pubic hair. These denials were unimpressive and I was led to conclude that the evidence of the three witnesses on this subject should be preferred to the evidence of the applicant, given that it was independently corroborated by the doctor who was not called by the applicant to otherwise explain the entry in his notes.
Mr Rushton made a similar attack on the applicant’s credibility when he cross-examined Ms Horman about her relationship with a man named Michael. Ms Horman completely denied any relationship with a person named Michael, and once again an independent doctor’s records contradicted her, this time those of Dr Robert Reid made in 1992 revealed an association with a person of that name.
The second flank of Mr Rushton’s attack dealt with the existence of some sexually explicit photographs of herself that the applicant was alleged to have brought in to her workplace and shown to her work mates. This action was specifically denied by the applicant in her evidence in chief, and she instructed her counsel to put to each and every witness who made reference to the photographs that the witness was part of a conspiracy to invent the story of the photographs which the witness well knew never existed. As each witness took the stand and had this proposition put to them I watched with care. None of them showed the slightest hesitation in denying the allegation, and the various descriptions of the photographs tallied in ways that led me to the view that the evidence of their existence was much more likely to be true than false. I could not even say that the respondent had failed to satisfy the onus of proof in relation to the existence of these photographs. I was left with the firm impression that they existed and had been shown to members of the staff of Repco in Artarmon.
Mr Rushton’s success in this attack on the applicant’s credibility meant that I would have to be exceedingly careful before I preferred her evidence over that of any other person. I would need at least some corroboration, and where this was not forthcoming I would have to decline to accept the applicant’s evidence.
With these matters in mind it is necessary to go through the allegations made by the applicant and listed in paragraphs 6 to 10 of this judgment. Rather than repeat each allegation I will refer to it by the paragraph number next to it.
Discrimination/Harassment contrary to s.28A.
5.3.4.1In paragraph 23 of his affidavit Mr Chamberlin denies making the comment deposed to by Ms Horman, but admits saying “Got to get me some of that” about Amy. In these circumstances I prefer the evidence of Mr Chamberlin in relation to this remark although it may well be that given his admission the distinction is only a matter of degree.
5.3.4.2Mr Chamberlin in his affidavit deals with this allegation in some detail. He was also cross-examined about the matter and admitted to saying to Mr Wong “I fuck you in arse.” He admits to saying these words on two occasions and admitted that it was not an appropriate remark for a manager to make. I prefer Mr Chamberlin’s history of the events and admissions to the allegations of the applicant.
5.3.4.3Mr McDougall’s response to this allegation is “I deny that I ever pulled down her pants to mark on her backside.” This is not actually what is alleged and in paragraph 30 of his affidavit Mr McDougall admits:
“It was pretty common practice for staff to reach out as another member was walking by and try and place a penmark on the other’s arm or bare leg… I may have reached over and caught her midriff area with a penmark if she were wearing a short top and hipster slacks.”
Of all the witnesses called by the respondent I was the least impressed with Mr McDougall. In the witness box Mr McDougall attempted to paint himself as an old Repco employee who was aloof from the juvenile activities of the rest of the staff at the Artarmon warehouse. He took little or no part in these activities and he had no social relationship with any of the staff members. This may have been how Mr McDougall saw himself but it was not how others saw him and I am unable to give his evidence much weight. Once again, however, the distinction between the allegations of Ms Horman and the admissions of Mr McDougall are really only a matter of degree.
5.3.4.4.This is denied by Mr McDougall. It is not corroborated and in the circumstances I make no finding upon it.
5.3.4.5.There was considerable amount of evidence and cross-examination about the use of this phrase. Mr Chamberlin admitted to using it although in a somewhat truncated form. He agreed that the phrase was thrown around about twice a week. He said that “The implication was basically a head job”, and admitted that he was aware of what he was implying. He admitted it was an inappropriate remark for a manager to make. Mr McDougall says that he did not hear this being said but Mr Maulguet admitted in cross-examination that he used the truncated phrase. His version was that “That was just something between the guys, just an in-joke between us.” The guys he nominated were Mr Chamberlin and Mr McDougall, however, he feigned ignorance of the meaning of the phrase.
I find on the basis of these admissions that the phrase was used commonly by both Mr Maulguet, the second in command and Mr Chamberlin the manager. It has never been suggested that the remark was not made in the presence of the applicant.
5.3.4.6The one person who did not give evidence in these proceedings was Mr Julio Grandinetti. A possible reason for this was advanced by one of the witnesses and, given that the respondents have managed to bring together all the other major players, I would not criticise them for this omission. The witnesses for the respondent were almost unanimous in the view that Mr Grandinetti was a difficult and argumentative character. Most of them deposed to the fact that he and the applicant would argue frequently and would do so in “another language.” The applicant denies knowing Italian, but I prefer the evidence of the respondent’s witnesses to that of the applicant in relation to this. If the applicant had suggested that the remarks were made to her in Italian or some other language which she understood I would have much less difficulty in making a finding that this occurred, but in the circumstances I am unable to do so.
5.3.4.7This comment is specifically denied by Mr Maulguet in his affidavit. No other witness admits overhearing it and in the circumstances I am not prepared to find that it was said.
5.3.4.8This remark is specifically denied by Mr Chamberlin and there is no corroboration of the applicant’s evidence from any other party and I am not prepared to find that the remarks were made.
5.3.4.9In his affidavit Mr Chamberlin says at paragraph 33:
“I may have said something about her breasts but it only would have been in response to conversation initiated by Ms Horman.”
According to Mr Chamberlin’s version of events Ms Horman would discuss her pregnancy and the changes occurring to her body as a result of it with Mr Chamberlin. I am prepared to accept that the words were said but I prefer the evidence of Mr Chamberlin that they were said in the context of a conversation initiated by Ms Horman.
5.3.4.10In paragraph 35 of his affidavit Mr McDougall accepted that someone made the remark about us having a two legged dog called Maev, but denied that it was him.
I felt that the evidence of Mr McDougall was not entirely reliable and was contradicted in important particulars (particularly surrounding the altercation between him and Ms Horman) by Mr Chamberlin. Where there is such a contradiction I prefer the evidence of Mr Chamberlin who was more frank in the witness box. Mr McDougall, like other witnesses, tried to create the impression that he worked as an island on his own, seldom descending into the general melee of life in a busy spare parts showroom and not associating socially with the staff. This does not sit well with his admissions of texta fights, cricket matches and water fights that were made in evidence. I find, on the balance of probabilities, that the remarks alleged by Ms Horman were made by Mr McDougall.
5.3.4.11The context of this remark is explained in paragraph 36 of Mr McDougall’s affidavit. He admits, in the context of a discussion about a publicity promotion to saying the words:
“Well it’s no use me stripping off my clothes and standing out the front because that would chase them away! What about you Maev? What about you Angela? (referring to Ms Gough) Do you want to get your gear off and get out in front?”
Notwithstanding my criticisms of Mr McDougall as a witness, this explanation sounds so much more plausible than the original allegation that I am inclined to accept it. This is not, however, much of a concession in favour of the respondents given the words that were used.
5.3.4.12.Although Mr Maulguet denied hearing Mr Chamberlin making this statement, Mr Chamberlin admitted it in cross-examination.
5.3.4.13.This activity was denied by Mr McDougall but Mr Chamberlin in paragraph 38 of his affidavit says:
“I recall… that she and Mr McDougall would “joke around” when the store was quiet, Ms Horman biting Mr McDougall’s arm and Mr McDougall pulling back Ms Horman’s bra strap and letting it go.”
Mr Chamberlin denies participating in this activity. In the absence of corroboration I am unable to find that he did but I do find that it took place as between Mr McDougall and the applicant.
5.3.4.14.This allegation is not admitted by either Mr Chamberlin or Mr Maulguet although it is suggested by them that the applicant instigated sexually frank conversations concerning her pregnancy. In the circumstances I am not prepared to find that it took place.
Discrimination on Grounds of Sex and Pregnancy
5.4.3.1.These remarks are alleged to have been made by Mr McDougall after Ms Horman undertook a stocktake about which she deposes in paragraph 17 of her affidavit. It is referred to in paragraph 20 of Mr McDougall’s affidavit and he does not deny that the words were used. The argument which Ms Horman had with Mr McDougall was allegedly witnessed by Mr Malguet and Mr Chamberlin. Mr Malguet admits hearing raised voices but does not depose to the actual words used. Mr Chamberlin in paragraph 15 of his affidavit denied witnessing the incident although he also agreed that he heard raised voices. He spoke to Ms Horman about the incident and later spoke to Mr McDougall suggesting that Mr McDougall apologise. Ms Horman also gave evidence that the incident caused her considerable concern, was a trigger for a letter of complaint written to management and set off some vaginal bleeding which she thought could have been a threatened miscarriage and in respect of which she attended her doctor.
In the light of the admissions made by various witnesses for the respondent I accept that the incident took place very much as Ms Horman has deposed and that she was screamed at by Mr McDougall. I also accept Ms Horman’s evidence concerning the vaginal bleeding and her visit to the doctor and that it was obviously of sufficient concern to Mr Chamberlin for him to speak to Mr McDougall about the incident and suggest that he apologise. I accept that the remarks made by Mr McDougall included the words “you stupid fucking bitch”. I also accept, because of his admission, that Mr McDougall did not apologise although requested to do so.
5.4.3.2.Mr McDougall in his affidavit accepts that someone made the remark about us having a two legged dog called Maev. Given this admission there is little benefit in exhaustively examining whether this was in fact said by Mr McDougall or by some other employee. The fact is that it was said and Ms Horman deposes to having heard it in paragraph 30 of her affidavit.
5.4.3.3.Ms Horman does not identify who made this remark. Mr McDougall denies that he said it in paragraph 35 of his affidavit and denies that he heard anyone else say it. It was also denied specifically by Mr Chamberlin in paragraph 35 of his affidavit. In the absence of any corroboration or admission concerning these remarks I am not prepared to find that they were made.
5.4.3.4.This remark is alleged to have been made by a customer, a Mr Johnny Briefcase. It was said on the telephone to Ms Horman. No claim has been made against Mr Briefcase or his company and it is hard to see how this can be the responsibility of the respondents if indeed it took place.
I have dealt earlier with the allegations contained in paragraph 5.5.3.1. and 5.5.3.2. and will not repeat my findings.
Claim for Termination on the Grounds of Pregnancy
I find that the decision to make the applicant redundant came about as part of a general review of staffing requirements at Repco, and that there was at the time a genuine downsizing going on. I accept the thrust of the evidence given by Mr Hardy, and I note that Ms Horman was the most recently employed telephone sales interpreter at the Artarmon branch. I accept the evidence that the Artarmon branch was not performing adequately, which is not surprising given the evidence which I heard as to the store’s management. I am not prepared to draw the inference requested that Ms Horman was chosen because of her pregnancy. It is much easier to draw the inference that this was a “last in first out” decision.
Claim in Respect of Offensive Behaviour because of Race
5.7.3.1In his affidavit at paragraph 24 Mr Chamberlin admits that he said “I can’t stand wogs” but denies the balance of the comment. I do not make any finding in respect of this second phrase.
5.7.3.2.This remark is denied by Mr Chamberlin and not referred to by Mr McDougall. I do not find it was made.
5.7.3.3.The use of this phrase is admitted.
5.7.3.4.There is no independent corroboration of this allegation. It was not put specifically to Mr Chamberlin in cross-examination. I am not prepared to find that the words were used.
5.7.3.5.The applicant alleges that this phrase was used by Mr McDougall. Mr McDougall denies it. Mr Chamberlin at paragraph 16 of his affidavit confirms that the applicant told him contemporaneously what Mr McDougall had said, and used words similar to those of her complaint. As this forms part of the altercation between Mr McDougall and Ms Horman which I have generally accepted as having taken place, I am prepared to accept that these words were used.
5.7.3.6.The use of these words was admitted as being overheard by Mr Edwards at paragraph 24 of his affidavit, and in those circumstances I accept they were used.
5.7.3.7.This is admitted by Mr Maulguet at paragraph 16 of his affidavit.
I am also able to make a number of other findings of fact.
I find that Ms Horman wrote the letter which is annexed to her affidavit as exhibit “C” addressed to Mr Norm Hardy and dated 1 October 1997. There is sufficient corroborative evidence from Mr Hook, Mr Edwards, Ms Gough, Mr McDougall and Mr Chamberlin that the applicant intended to write such a letter that I am able to find on the balance of probabilities that she did so. This is not to say that the letter was ever sent. The only evidence that it was sent was that of Ms Horman herself. Because of the view which I have expressed about her veracity I am not prepared to find on her uncorroborated evidence that the letter was in fact sent to Mr Hardy.
I accept the evidence of the respondent’s witnesses to the effect that Ms Horman took part in the activities at work deposed to, such as cricket matches and balloon fights.
I find that the message left by Ms Gough was altered so as to change the word “witch” to “wog”, and to add a “G” so that the last words read “mobil wog” instead of possibly “mobil no”, and that these alterations were, on the balance of probabilities, made by Ms Horman.
There is no satisfactory evidence to tie in the “death threat” with the respondents. I am not prepared to accept Ms Horman’s uncorroborated evidence in respect of this document.
I find that the incident with the banana in which the applicant was alleged by a number of the respondent’s witnesses to have eaten a banana in a sexually provocative fashion did, on the balance of probabilities, occur in much of the way deposed to by those witnesses. I do not accept the applicant’s denials in which she first said that no incidents had taken place and then reluctantly agreed that she did recall eating a banana at the workplace.

Submissions of Parties

I was greatly assisted by both counsel preparing for me detailed written submissions.
The respondent rightly concedes that “certain behaviour occurred within the workplace which was inappropriate”. This admission was made not only by the respondent’s counsel but also by its witnesses under cross-examination. In particular the respondent’s witnesses acknowledged managerial failings in allowing inappropriate conduct to take place, participating in it and not appropriately disciplining Mr McDougall after the incident in which he shouted at the applicant, to her considerable distress and physical sequelae (spotting – threatened miscarriage). The respondent argues that the real issues which require determination in the proceedings are:
“(a) Was the conduct of the respondent’s employees “unwelcome” conduct of a sexual nature; and
(b) was the conduct such that a reasonable person would anticipate that the applicant would be offended, humiliated or intimidated?”
These matters are also addressed by the applicant’s counsel in paragraphs 4.4 to 4.11 of her submissions. It would appear that the parties are “ad idem” on the matters which would need to be found in order to establish sexual harassment under section 28A of the Sex Discrimination Act 1984 (Cth), and discrimination by reason of sexual harassment contrary to section 14(2)(b) of the same Act. In addition, the applicant’s counsel refers to the claims under section 7(1)(b) and (c) of the Sex Discrimination Act arising out of her pregnancy and the unlawful termination claim in breach of sections 7 and 14, as well as the alleged breach of section 18C of the Racial Discrimination Act 1975 (Cth) by the use of offensive and derogatory terms.
The respondent also conceded that “conduct occurred within the workplace which was of a sexual nature within the meaning of section 28A of the Sex Discrimination Act 1984 (Cth).”
The respondent claims that the applicant has:
(a) failed to establish that the conduct which is the subject of the complaint was unwelcome; and
(b) failed to establish that she did not participate in, initiate or encourage the conduct which is the subject of the complaint.
The respondent argues that if the Court finds that the applicant did participate in, initiate or encourage such conduct, then the Court could not properly find that a reasonable person, having regard to such circumstances, would have anticipated that the applicant would be offended, humiliated or intimidated.
The respondent seeks to establish the first of its contentions – that the applicant has not proved that she found the conduct unwelcome – by what is described in the sport of fencing as a “stop hit”. The respondent argues that the applicant cannot succeed “unless the Court rejects the evidence of each of the respondent’s witnesses that the applicant encouraged, initiated and participated in much of the conduct which is the subject of the complaint.” The respondent further states that the applicant’s evidence is that of a “witness who is not capable of belief”. Mr Rushton seeks to prevent the “hit” of finding of unwelcome conduct by “stopping” it with the attack he mounts on credibility and credulity.

I am unable to accept this submission. I have made enough findings of the existence of unsatisfactory conduct of a sexual and racial nature directed towards the applicant or in her presence to be able to move straight on to the question of whether or not that conduct was unwelcome. In this regard I would not accept the uncorroborated evidence of the applicant, but I do not have to. I have also found that Ms Horman wrote the letter of 1 October (exhibit “C” to her affidavit). I have found that it was written at or around the time of Mr McDougall’s outburst. Even if the letter was not delivered, and I do not find that it was, it constitutes an indication of her feelings about the way she was being treated in her work environment at that particular time, and to my mind establishes on the test discussed in L v M Ltd (1994) EOC 92-617 that she felt that the conduct was unwelcome. I am aware that it could be argued that this letter referred only to the applicant’s response to Mr McDougall’s criticism of her work, as opposed to remarks and activities of a sexual or racial nature. But that would be inaccurate. The letter describes a number of incidents, including on page 2
(a) “Someone had written on our timesheets under my name ‘Mav the wog’”
(b) “I am sick to death of being sworn at and called names in relation to my looks, my name and whatever else grabs the fancy of other male staff”
(c) “Mr Les McDougall called me a stupid f------ bitch”
(d) “Whilst answering phones should you have to put up with being pinched on the backside or your bra strap being pulled I think not”
(e) “Again, Mr Hardy a lot more abuse goes on that I have not written of in this letter. I myself have been lowered to vulgar language because someone would not stop riding you and you just get to the point where you truly have had enough”
The letter ends with the request:
“Please, do something, it’s not fair for people to get away with such behaviour.”
I am satisfied that as of the date upon which this letter was written Ms Horman had been harassed by being subjected to unwelcome conduct of a sexual nature of the type described in the letter and additionally of the type described in those instances that, earlier in this judgement, I accepted took place.
The second limb of Mr Rushton’s argument is whether such conduct has the effect that a reasonable person having regard to all the circumstances would have anticipated that the applicant would be offended, humiliated or intimidated. This test is also accepted by the applicant at paragraph 4.10(1) of her submissions as applying in respect of the federal Sex Discrimination Act 1984. Both counsel refer to the decision in Hall v A and A Sheiban Pty Limited (1989) 20 FCR 217.
The respondent called evidence from a considerable number of witnesses for the purpose of establishing that the applicant participated in, initiated or encouraged the conduct which was the subject of the complaint. The evidence in fact went further than this. It did not confine itself merely to the incidents that the applicant complained about, but made reference to occasions when the applicant was alleged to have taken part in the general tomfoolery that was taking place (vide the description of the cricket matches or the water bombing of the staff). There was also evidence of the applicant’s general behaviour, such as her use of coarse language to Mr McDougall and Mr Grandinetti given by Mr McDougall, Mr Chamberlin, Mr Edwards, Mr Hook and Ms Gough.
The respondent denied these allegations arguing (as she did in respect of a number of things) that her Muslim upbringing militated against her use of bad language. I was not impressed by her arguments or by the way she dealt with the cross-examination, and am inclined to the view that the applicant did use bad language in the workplace and frequently “gave as good as she got”.
The difficulty in attempting to take the approach argued for by Mr Rushton is that it seems to assume that a willingness to use swear words oneself equates with an acceptance of them being used against one. I am not sure that a reasonable person would not anticipate that the applicant would be offended, humiliated or intimidated by bad language solely because the applicant herself also used it from time to time. “Giving as good as you get” is often the only way in which a person feels he or she can resist unpleasant language and would not to my mind indicate to a reasonable person the type of acceptance of the language which would relieve a respondent of liability under section 28A of the Sex Discrimination Act.
In any event, the complaints which the applicant has made about the conduct of the respondent’s employees extend far beyond the use of bad language in her presence. They consist of a number of direct insults and a number of highly personal remarks or actions. I do not agree with the respondent that the applicant has not proved to the requisite standard that she did not participate in, initiate or encourage all of those activities. For example, my findings in respect of the words used at paragraphs 5.3.4.1, 5.3.4.2, 5.3.4.10, 5.4.3.1, 5.4.3.2, 5.7.3.1, 5.7.3.2 are just not the type of instances which an applicant could reasonably be said to have initiated, encouraged or participated in. Others, such as 5.3.4.9, may well be. Applying these considerations to the complaints, the objective test of whether a reasonable person having regard to all the circumstances would have anticipated that the applicant would be offended humiliated or intimidated has been met.
The respondent submits that when giving this objective test consideration I must take into account all the evidence and my findings about the applicant’s veracity. “All the evidence” includes any findings I might make as to the applicant’s own use of crude and vulgar language, her own engaging in physical contact with the respondent’s employees, her exhibiting of explicit sexual photographs of herself, her disclosures of a personal nature such as those relating to the shaving of her pubic hair, her use of the toilet whilst male employees were using the urinal, her participation in acts of tomfoolery and her aggressive arguments with Mr Grandinetti. I have accepted that all these things took place but I do not think that it necessarily follows that a person in the position of the applicant would still not be offended, humiliated or intimidated by some of the actions and remarks that I have found were made. To do this would assume an assent to a form of anarchy in the workplace that I do not believe a person in the position of the applicant would subscribe to. It is particularly significant that in this case, in which a considerable amount of evidence was heard, there was no evidence about this type of insulting behaviour being imposed upon a male member of staff, with the exception of one who was Chinese. It is also significant that even Ms Gough, who was otherwise accepting of almost all the forms of behaviour that took place wanted to draw a line at the use of certain words. There was no denying of Ms Gough’s entitlement to draw such lines, why should the applicant not be permitted the same right?
The applicant, through her counsel, also made a number of submissions. They were to the effect that the applicant was a witness of truth and the respondent’s witnesses were not. If I accepted these submissions, then it would necessarily follow that the applicant would succeed. It is because I did not accept these submissions that I have dealt at such length with the submissions of the respondent.
One of the submissions made by the applicant was that the applicant’s evidence was corroborated by her husband. Her husband’s affidavit most certainly does not extend as far as this. Under cross-examination he stated:
“She told me little bits and pieces through this but not, like, the whole, you know, not everything what’s written down here. This is obviously every single thing, and I didn’t get told every single thing”.
It was clear from the evidence he gave and the way he gave it that the incidences of sexual innuendo and alleged harassment were conveyed to him in general terms, but not in the detail contained in Ms Horman’s affidavit. Absent such detail it is difficult to accept the evidence as corroborative of the applicant.
The applicant submits that the use of the word “wog” in relation to the applicant and others was offensive and discriminatory to the applicant. There was evidence that the applicant used the word herself with respect to Mr Grandinetti. I am prepared to find that she did do so, but I think that the very words used indicated that when she used them she intended to insult Mr Grandinetti. It follows from this that she believed that the word “wog” could be used in an insulting manner, and I am prepared to find that in the instances in which I have accepted that it was used, that it was used in that way with respect to the applicant. This is particularly the case in relation to the written use of the word in the attendance register.

Findings of law

I am satisfied for the reasons given in this judgment that between 3 February 1997 and 15 December 1997 whilst the applicant was employed by the respondent, the respondent, in this and all cases by its servants or agents, sexually harassed the applicant by engaging in unwelcome conduct of a sexual nature towards the applicant in circumstances in which a reasonable person would anticipate that the applicant would be offended, humiliated or intimidated in breach of section 28A of the Sex Discrimination Act 1984 (Cth).
I am satisfied that the respondent discriminated against the applicant and subjected the applicant to detriment pursuant to section 14(2)(d) of the Sex Discrimination Act 1984 (Cth) by engaging in unwelcome conduct of a sexual nature towards the applicant in circumstances in which a reasonable person would anticipate that the applicant would be offended, humiliated or intimidated in breach of section 28A of the Sex Discrimination Act 1984 (Cth).
I am not satisfied that the respondent discriminated against the applicant on the grounds of her pregnancy in breach of section 7(1)(b) of the Sex Discrimination Act 1984 (Cth) by treating the applicant less favourably than other employees who were not pregnant, because I have not accepted that one of the remarks constituting the allegation was made and found that the other was initiated by Ms Horman.
I am not satisfied that the respondent unlawfully terminated the applicant on the grounds of her pregnancy on the grounds of her pregnancy in breach of section 7 and section 14 of the Sex Discrimination Act 1984 (Cth).
I find that the respondent used offensive and derogatory terms directed to the applicant and others in the presence of the applicant in a public place or in the sight or hearing of people in a public place in breach of section 18C of the Racial Discrimination Act 1975 (Cth) in circumstances where the respondent’s actions were reasonably likely, in all the circumstances to offend, insult, humiliate or intimidate the applicant.
The respondent has conceded in its submissions that if the Court finds the applicant’s claims proved, then it is vicariously liable.
The findings which I have made relate only to those incidents which I have accepted took place and do not include remarks which I have previously found were probably initiated by the applicant. The effect of my findings is that the number and gravity of the remarks and activities have shrunk considerably from those which formed the subject of the original complaint.

Why did the applicant succeed?

I have made it quite plain in this judgment that I do not believe that the applicant was a witness of truth. I have also made it plain that I accept much of the evidence of the applicant’s own activities that was given by the witnesses for the respondent. How is it then that I have nonetheless upheld three of the applicant’s five complaints? I have upheld these complaints because I have found that it was not necessary to believe the applicant in order to accept that unsatisfactory conduct took place in the Repco workplace. The respondents made those admissions themselves.
I also found that whilst the conduct of the applicant was such as to exclude quite a number of her complaints, those that were left represented activities directed against her in respect of which any reasonable person in her position was entitled to complain. I found that everyone was entitled to draw a line somewhere, and those activities crossed that line. I also found that subjectively the applicant found those actions unwelcome. I did that by reference to the letter which was written contemporaneously with the activities and which I found represented her state of mind at the time. I rejected the argument put by the respondent which was in effect that the applicant’s conduct was such as to exclude her altogether from being hurt or humiliated by what occurred in this workplace.

Decisions and Orders – Damages and Costs

Damages

I have found that a number of incidents alleged by the applicant took place either in accordance with the applicant’s allegations or in some cases such as allegation 5.3.4.1. or 5.3.4.2. I have accepted that words were said that differed only in degree from those alleged. By far the most serious complaint which I accepted was that arising out of the heated argument the applicant had with McDougall in September 1997. The physical sequelae of that complaint was described by Dr Robert Khoo in his report dated 10 November 1998 as follows:
“Mrs Horman remained well until she presented to the surgery in an agitated and worried stated on 11.09.97 (fourteen weeks pregnant) complaining of a two day history of “per vagina” spotting of blood. She had alleged an argument with her employer the day before that greatly upset her. Routine ante-natal examination on that day was normal but the history was consistent with a threatened miscarriage. She was advised to rest, which was sufficient to avert the threatened miscarried. She subsequently delivered a healthy baby girl at term and has continued to enjoy good health since. She last attended my practice on 22.08.98.”
That is the only contemporaneous medical report that exists. Other medical reports were received from Dr David Butler who stated on 12 November 1998 to a Dr Michael McGrath:
“Thank you for referring Mrs Horman who I saw on 27 October. She suffered from anxiety several years ago but then she was doing quite well until various problems at work last year led to an exacerbation of her condition. She has now put in a claim for compensation through HREOC in respect to sexual and racial harassment in the work place. At this stage, I didn’t think she required any medication but I have given her some techniques to reduce her anxiety and I was to review her again on 11 November but unfortunately she did not arrive for this appointment.”
A further medical report from Dr Leonard Lambeth dated 26 January 1999 was tendered. This was a medical-legal report provided to the applicant’s solicitors. The doctor suggested that Ms Horman was at the time of the examination “tense and anxious at interview…she was dysphoric and there was no sense of joy about her…there was no evidence of psychosis, there was no evidence of an organic psycho syndrome”. The doctor states “There is no doubt that this woman has suffered from panic attacks.” He stated that she suffered from a panic disorder that was moderately severe and was brought on by the difficulties which the applicant experienced at Repco. He suggested certain further treatment but then stated:
“I think the outlook is quite good if she has the treatment that I have recommended.”
It does appear that Ms Horman had certain treatment of the types suggested by Dr Lambeth at the Central Coast Area Health Service who reported on 19 November 1999. That treatment commenced on 26 June 1999 and was planned to conclude at the end of November of that year. There is no medical evidence suggesting that there was a need for further medical attention.
I do not believe that it has been suggested by the respondent that the applicant was lying, or even exaggerating, when she attended Dr Khoo after the altercation with Mr McDougall. My reading of the medical evidence thereafter is of a low level anxiety state which had probably resolved by the end of 1999. I am prepared to accept that Ms Horman would experience some anxiety in recommencing employment in any mostly male environment of the type she experienced at Repco.
I do not think Ms Horman exaggerated her symptoms. They would appear to fall within the less serious band of symptoms although that is not to underestimate the concern that any pregnant woman would feel at the possibility of a miscarriage brought about by actions in the workplace. I have considered the severity of the medical sequelae and the type of incident to which Ms Horman was subjected. Taking all of these matters into account I believe the appropriate award would be $12,500.00 including any special damages for the cost of medication. There is no other claim for special damage in respect of the general matters of unlawful behaviour. I have already found that the redundancy was not unlawful.

Costs

I have heard no argument as to costs. In these circumstances I am prepared to hold any order in respect of costs in abeyance for a period of fourteen days so that the parties can appear before me and argue the matter within that time. In the event that the parties do not wish to argue the matter of costs then the order which I make and the reasons therefore are as follows:
The general rule for discretion in awarding an apportionment of costs is that:
“Ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order.” Toohey J in Hughes v Western Cricket Association (Inc) (1986) 8 ATPR 40 at 48 cited in Newcrest Mining (WA), BHP Minerals Limited v The Commonwealth of Australia, The Direction of National Parks and Wildlife (1993) FCA unreported, French J.
In Newcrest Mining French J cites Cooper J in Cummings v Lewis (1993) 113 ALR 285 at 327:
“It is within the discretion of a trial Judge to award only a proportion of a successful party’s costs if the conduct of that party in a trial was such as to unreasonably prolong the proceedings…”
In Colgate Palmolive v Cussons (1993) 118 ALR 248 at 257 Sheppard J notes some of the circumstances which would justify another order:
“I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud… Evidence of particular misconduct that causes of loss of time to the court and to other parties… The fact that the proceedings were commenced or continued for some ulterior motive… Or in wilful disregard of known facts or clearly established law… The making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions…
In Oshlack v Richmond River Council (1998) 193 CLR 72 at 97 McHugh J says :
“The traditional exceptions to the usual order as to costs focus on the conduct of the successful party which disentitles it to the beneficial exercise of the discretions”.
In Anglo-Cyprian Trade Agencies Limited v Paphos Wine Industries Limited [1951] 1 ALL ER 873 at 874 Devlin J formulated the relevant principal as follows:
No doubt, the ordinary rule is that, where a plaintiff has been successful, he ought not to be deprived of his costs, or, at any rate, made to pay the costs of the other side, unless he has been guilty of some sort of misconduct.
“Misconduct” in this context means misconduct relating to the litigation, or the circumstances leading up to the litigation. Thus the court may properly depart from the usual order as to costs when the successful party by its lax conduct effectively invites the litigation; unnecessarily protracts the proceedings; succeeds on a point not argued before a lower court; prosecutes the matter solely for the purposes of increasing the costs recoverable; or obtains relief which the unsuccessful party has already offered in settlement of the dispute.”

In Lucas v Hillier and Carny (1999) SASC 128 the plaintiff admitted to lying on oath. Millhouse J found that “The defendants should not have to pay for the time taken to prove the plaintiff’s deceptions.”
In the instant case the applicant made a large number of allegations. The respondent cross-examined the applicant for a considerable time and established to my satisfaction that she was not a person who could be believed upon her oath. A number of witnesses were called to refute some of the allegations that were made. In the result I determined only to admit and accept allegations which were corroborated in some way. The allegations of improper conduct I accepted were corroborated by way of admissions. The required subjective feelings of hurt and humiliation were corroborated by my making a finding in connection with the letter which I accepted the applicant had written contemporaneously with her employment. There is no doubt that in these circumstances the trial was prolonged by the conduct of the applicant and by her untruthfulness. Her Counsel persisted in suggesting a conspiracy between the respondent’s witnesses which she continued into her written submissions. In particular in respect of the photographs she states:
“The applicant submits that the various respondent witnesses discussed these legal proceedings and concocted a story that the plaintiff brought to work a number of inappropriate photographs. The applicant submits this was done in a deliberate attempt to damage the applicant’s case.”
The proceedings before me lasted three and a half days. However, there was obviously considerable preparation time on the part of the respondent in establishing that the applicant was not a witness of truth. This militates against the usual type of order for costs that is given by the court where costs do not follow the event. These orders are usually directed at the number of days of hearing e.g. an order that a respondent pay one days costs only. I think that the appropriate order in this case, which takes into account both the applicant’s conduct and the fact that she did succeed, and succeeded on the respondent’s own admissions, is that each party should bear its own costs of the proceedings.

I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Raphael FM.

Associate

Dated: 27 July 2001

[2001] FMCA 52

19 December 2001