Kruger v Thompson

Case [2024] FedCFamC2G 883

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Kruger v Thompson [2024] FedCFamC2G 883  

File number(s): BRG 548 of 2022
Judgment of: JUDGE EGAN
Date of judgment: 13 September 2024
Catchwords: HUMAN RIGHTS – Application for declarations and compensation for alleged sexual harassment – where the court was unable to make findings one way or the other that any pleaded conduct was unwelcome – where onus of proof not discharged by applicant – where application dismissed accordingly.

Legislation:

Evidence Act 1995 (Cth) (No 2 of 1995) s. 140

Sex Discrimination Act 1984 (Cth) s. 28A

Sex Discrimination Act 1984 (Cth) s. 28B

Criminal Code Act 1899 (Qld) s. 222

Cases cited:

ASIC v Wilson (No. 3) [2023] FCA 1009

Holloway v McFeeters (1956) 94 CLR 470

Lehrmann v Network Ten Pty Ltd [2024] FCA 369

Rhesa Shipping Co SA v Edmonds & Anor: The Popi M (1985) 2 All ER 712
Division: Division 2 General Federal Law
Number of paragraphs: 89
Date of last submission/s: 6 September 2024
Date of hearing: 24 May 2024
Place: Brisbane
Counsel for the Applicant: Mr D. O’Gorman SC with Mr T. O’Brien
Solicitor for the Applicant: Maurice Blackburn
Counsel for the Respondents: Mr L. Henry
Solicitor for the Respondents: Donnelly Law Group

ORDERS

BRG 548 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

JANA KRUGER

Applicant
AND:

ALAN STANLEY THOMPSON

First Respondent

FLAXTON GARDENS PTY LTD (ACN 138 775 505)
Second Respondent

ORDER MADE BY:

JUDGE EGAN

DATE OF ORDER:

13 SEPTEMBER 2024

IT IS ORDERED THAT:

1.The Originating Application filed on 9 December 2022 be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE EGAN

INTRODUCTION

  1. This proceeding centred around what relevantly occurred between the applicant (Kruger) and the first respondent (Thompson) between the late hours of 12 January 2019 and the early hours of 13 January 2019 when sexual intercourse occurred between them.

  2. Thompson’s alleged conduct was the subject of a complaint of rape made by Kruger against Thompson in about June 2020. Thompson was acquitted on the charge of rape after a two (2) day trial conducted in the District Court of Queensland in November 2021. [1]

    [1]           See Transcripts of District Court Trial at Ex 4 and Ex 10.

  3. Kruger lodged a Complaint Form with the Australian Human Rights Commission (“AHRC”) on 11 February 2022. The complaint was terminated on 12 October 2022.

  4. Kruger filed the Originating Application in this proceeding on 9 December 2022.

  5. Kruger’s pleaded case, as set out in the Amended Statement of Claim filed on 20…

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Kruger v Thompson [2024] FedCFamC2G 883
Case
[2024] FedCFamC2G 883
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CaseChat Overview and Summary

Kruger v Thompson was a case before an Australian court where Kruger sought declarations and compensation for alleged sexual harassment by Thompson. The case centred around whether the court could make findings that the conduct in question was unwelcome and if Kruger had discharged her burden of proof. The court examined the evidence presented and applied the standard of proof on the balance of probabilities, as outlined in the Evidence Act 1995.

The legal issues in this case involved determining whether the applicant, Kruger, had successfully discharged her onus of proving that the conduct by Thompson was unwelcome and if she was entitled to compensation. The court had to weigh the evidence, assess its credibility, and decide whether Kruger's version of events was more probable than Thompson's.

The court found that it could not make findings consistent with either party's version of events due to the lack of clear evidence and the inherent difficulties in assessing the credibility of witness testimony. The court also found that Kruger did not find Thompson's conduct unwelcome until after they entered the Bridal Suite, and it could not determine if any post-Bridal Suite conduct was unwelcome. Consequently, the court concluded that Kruger had not discharged her onus of proof.

The court dismissed Kruger's application for declarations and compensation, finding that the onus of proof had not been discharged. The court did not deem it necessary to address the issue of compensation or damages due to the outcome of the case.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In civil proceedings before the Court, s. 140 of the Evidence Act 1995 (Cth) (No 2 of 1995) (“the Act”) applied. It provided as follows:EVIDENCE ACT 1995 - SECT 140Civil proceedings: standard of proof(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:(a) the nature of the cause of action or defence; and(b) the nature of the subject - matter of the proceeding; and(c) the gravity of the matters alleged. When considering the relevant principles to be applied when assessing the evidence adduced before the Court in this matter, the Court has respectfully had regard to those parts of the judgment of Lee J in Lehrmann v Network Ten Pty Ltd [2024] FCA 369 at [90]-[111] and [126]-[132], which respectively provided as follows:[90]It is next appropriate to set out how I have directed myself as to fact-finding, the burden of proof, the standard of proof, and other more particular matters given the nature of the principal allegation. [91]Without introducing complications arising from the differing ways in which the phrase “burden of proof” has been used – and the differences between legal and evidential burdens (as to which see C R Williams, ‘Burdens and Standards in Civil Litigation’ (2003) 25(2) Sydney Law Review 165), I will use the expression burden or onus of proof as simply being the identification of which party has to demonstrate the case or an aspect of the case propounded, whereas the standard of proof is the applicable benchmark that the evidence adduced must meet to discharge that onus.[92]The question of who bears the onus in aspects of this case is straightforward. Mr Lehrmann had (and has successfully discharged) his onus in proving he has been defamed as alleged; the respondents now bear the onus of proof with respect to their defences. If those defences fail and Mr Lehrmann is entitled to damages, he will then be required to prove the compensatory damages he seeks. [93]What this means is that in order to make out the defence of substantial truth, the respondents need to discharge their onus of proving that Mr Lehrmann raped Ms Higgins. The nature of this aspect of the forensic contest brings with it considerations that are necessary to canvass in further detail.[94]I have discussed the relevant principles at length a number of times (see, for example, Transport Workers’ Union of Australia v Qantas Airways Limited [2021] FCA 873; (2021) 308 IR 244 (at 324–325 [284]–[288])). Notwithstanding this, it is worth referring to Besanko J’s recent survey of matters relevant to onus and proof in Roberts-Smith v Fairfax Media Publications Pty Ltd (No. 41) [2023] FCA 555. In Roberts-Smith, his Honour dealt with a number of matters relevant to: (a) the onus of proof in a justification or substantial truth case (at [93]–[94]); and (b) the standard of proof in a case where there is a serious allegation (at [95]–[110]). With respect, his Honour’s exposition in relation to these matters is comprehensive. I gratefully adopt the above-mentioned paragraphs.[95]At the risk of supererogation, I will, however, say something in my own words. I will also deal with the agreed facts relevant to Ms Higgins’ credit and some miscellaneous matters, which have informed my approach to the evidence.E.2 Relevant Observations as to Standard of Proof [96]As to the standard of proof, the starting (and end) point is s 140 of the Evidence Act 1995 (Cth) (EA), which relevantly provides:Civil proceedings: standard of proof(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:(a) the nature of the cause of action or defence; and(b) the nature of the subject-matter of the proceeding; and(c) the gravity of the matters alleged.[97]The matters set out in subsection (2)(a), (b) and (c) are mandatory but not exhaustive considerations; other considerations may also be relevant, including the inherent likelihood of the occurrence of the fact alleged and the notion that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and the other to have contradicted: Blatch v Archer (1774) 1 Cowp 63 (at 65 per Lord Mansfield).[98]The concept used in subsection (1), being the “balance of probabilities”, is often misunderstood. It does not mean a simple estimate of probabilities; it requires a subjective belief in a state of facts on the part of the tribunal of fact. A party bearing the onus will not succeed unless the whole of the evidence establishes a “reasonable satisfaction” on the preponderance of probabilities such as to sustain the relevant issue: Axon v Axon (1937) 59 CLR 395 (at 403 per Dixon J). The “facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied”: Jones v Dunkel (1959) 101 CLR 298 (at 305 per Dixon CJ). Put another way, as Sir Owen Dixon explained in Briginshaw v Briginshaw (1938) 60 CLR 336 (at 361), when the law requires proof of any fact, the tribunal of fact must feel an actual persuasion of its occurrence or existence before it can be found.[99]Justice Hodgson put it differently, but to the same effect, by observing that when deciding facts, a civil tribunal of fact is dealing with two questions: “not just what are the probabilities on the limited material which the court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision”: see D H Hodgson, ‘The Scales of Justice: Probability and Proof in Legal Fact-finding’ (1995) 69 Australian Law Journal 731; Ho v Powell [2001] NSWCA 168; (2001) 51 NSWLR 572 (at 576 [14]–[16] per Hodgson JA, Beazley JA agreeing).[100]Whatever way it is put, a “[m]ere mechanical comparison of probabilities independent of a reasonable satisfaction will not justify a finding of fact”: NOM v DPP [2012] VSCA 198; (2012) 38 VR 618 (at 655 [124] per Redlich and Harper JJA and Curtain AJA); Brown v New South Wales Trustee and Guardian [2012] NSWCA 431; (2012) 10 ASTLR 164 (at 176 [51] per Campbell JA, Bergin CJ in Eq and Sackville AJA agreeing).[101]Although s 140 EA is now the starting point, the concepts it incorporates are neither new nor novel. Any fact-finding inquiry depends upon context. As Kiefel CJ, Gageler and Jagot JJ recently observed in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857 (at 874–875 [57]), the statutory provision:… reflects the position of the common law that the gravity of the fact sought to be proved is relevant to “the degree of persuasion of the mind according to the balance of probabilities”. By this approach, the common law, in accepting but one standard of proof in civil cases (the balance of probabilities), ensures that “the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved”.(Citations omitted)[102]As those acting for Mr Lehrmann correctly state, in Briginshaw, Dixon J (at 362) emphasised that reasonable satisfaction is not attained independently of the nature and the consequence of the fact to be proved, and his Honour referred to the seriousness of the allegation, the inherent unlikelihood of the alleged occurrence, or the gravity of the consequences flowing from the finding in question as matters which could all properly bear upon whether the court is reasonably satisfied or feels actual persuasion. The other members of the Court in Briginshaw also referred to the seriousness of the allegation sought to be proved as a matter relevant to whether or not the tribunal of fact could be satisfied of the fact alleged (at 347 per Latham CJ; 350 per Rich J; 353 per Starke J; and 372 per McTiernan J).[103]None of this is inconsistent with what I said in Kumova v Davison (No 2) (at [262]), where I noted “the focus on the gravity of the finding is linked to the notion that the Court takes into account the inherent unlikelihood of alleged misconduct”. They are linked in that both the inherent unlikelihood of the alleged occurrence and the gravity of the consequences each require consideration.[104]An allegation of rape ranks high in the calendar of criminal conduct, and, at the risk of repetition, the allegation needs to be approached with “much care and caution” and with “weight being given to the presumption of innocence and exactness of proof expected”: Briginshaw (at 347 per Latham CJ; 363 per Dixon J). Further, a finding of rape would, needless to say, be seriously damaging to Mr Lehrmann’s reputation and this consequence properly gives one pause before making it: Ashby v Slipper [2014] FCAFC 15; (2014) 219 FCR 322 (at 345–346 [68]–[69] per Mansfield and Gilmour JJ).E.3 The Practical Difference Between the Civil and Criminal Standard[105]Although I will explain below why the allegations to be proved in making out the truth defence and the allegations to be made out by the Crown in the criminal proceeding are not identical, this is an example where the same essential wrongdoing is to be assessed by reference to both the criminal and the civil standard. Such cases are not common, and they bring into sharp focus cardinal aspects of our legal system.[106]Most first-year law students are introduced to the possibility of error of wrongful convictions and erroneous acquittals. They are (or at least were) made aware of what is often referred to as “Blackstone’s ratio”, being the fourth of five discussions of policy by Sir William Blackstone in his 1765 treatise Commentaries on the Laws of England, vol IV, ch 27 (Oxford University Press, 2016) (at 352) that “all presumptive evidence of felony should be admitted cautiously: for the law holds, that it is better that ten guilty persons escape, than that one innocent suffer”. I digress to note that this notion is ancient: the idea it is better to allow some guilty to escape rather than punish an innocent has Biblical origins (Genesis, 18:23–32) and later was the subject of discussion by Talmudic scholars (see Maimonides, The Commandments, Commandment No 290 (Charles B. Chavel, trans. 1967) (at 270)). Indeed, sixteen years before Blackstone, the concept had been expressed by Voltaire – albeit in a different ratio: “’tis much more prudence to acquit two persons, tho’ actually guilty, than to pass Sentence of Condemnation on one that is virtuous and innocent”: Voltaire, Zadig; or, The Book of Fate: An Oriental History (1749) (at 53).[107]In any event, this moral choice accommodating the possibility of error has been reflected in fundamental aspects of our criminal justice system, including the presumption of innocence and the logically connected requirement the burden of proof rests with the prosecution. It also finds reflection in the rigour of the criminal law standard of proof. [108]Hence, although it may be trite, it is worth stressing that in contrast to the present forensic contest, if this allegation of rape was to be determined at a criminal trial, it would not be open for the tribunal of fact to find the case proven unless it is satisfied that it has been proved beyond reasonable doubt: s 141(1) EA.[109]So even though it is necessary to bear in mind the mandatory s 140(2) EA factors and the cogency of the evidence necessary to establish rape on the balance of probabilities, and that the rape will not be proven unless I feel an actual persuasion of its occurrence, the difference between the criminal and civil standard of proof is substantive and can be decisive in dealing with the same underlying allegation.[110]Apart from anything else, this difference is evident from the necessity that in a criminal trial, the facts as established must be such as to exclude all reasonable hypotheses consistent with innocence. [111]By way of useful summary, as was emphasised by the High Court in Rejfek v McElroy (1965) 112 CLR 517 (at 521 per Barwick CJ, Kitto, Taylor, Menzies and Windeyer JJ):[t]he difference between the criminal standard of proof and the civil standard of proof is no mere matter of words: it is a matter of critical substance. No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding to attain that degree of certainty which is indispensable to the support of a conviction upon a criminal charge.…[126]As I will explain further below, the particularised allegation made by the respondents brings with it the requirement to prove:(1) that, at the time and place alleged (that is, at Parliament House on 23 March 2019), Mr Lehrmann had sexual intercourse with Ms Higgins;(2) without Ms Higgins’ consent; and(3) knowing Ms Higgins did not consent. [127]It is notorious that in many rape trials, the forensic battleground is whether the Crown can prove beyond reasonable doubt the second element (non-consent element) and the third element (knowledge element). In recent times, law reformers have focused attention on whether it is appropriate that consent to sexual activity must be communicated by words or actions, such that there is a responsibility to take steps to find out whether the other person is consenting. This has spurred some recent legislative change: see, for example, the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 (NSW). [128]It is beyond the scope of this judgment to discuss these changes, but as the Victorian Law Reform Commission recently put it in its report Improving the Justice System Response to Sexual Offences: Report (September 2021) (at [19.13]), some of the features of the criminal justice system: make sexual offences more difficult to prove in court. By their nature, sexual offending often happens in private, without other witnesses. The accused does not have to give evidence because they have a right to silence. For rape, the need to prove there was no consent means that many cases will end up focusing on the complainant.[129]What is notable about this civil case, and the criminal case that preceded it, is that by reason of Mr Lehrmann’s forensic position to contest the establishment of the first element (that sexual intercourse occurred), he has not engaged directly (through challenging the Crown case at the criminal trial or by way of evidence before me) with the reality and appreciation of consent.[130]Specifically, Mr Lehrmann has advanced an account that he came back to the Ministerial Suite accompanied by Ms Higgins for them to then go their separate ways: not only was there no sex, but no intimacy of any kind. [131]Below I explain why this aspect of Mr Lehrmann’s evidence is stuff and nonsense, but for present purposes, this conclusion makes it necessary to point out that in general, disbelief of one witness’s account does not establish the contrary, or that a witness giving a contrary account must be believed: Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363 (at 385–386 [60] per Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ).[132]Of course, if I am ultimately unable to make a finding one way or another as to what actually happened, it is open to decide the issue on the basis that the party who bears the burden of proof on this issue (that is, the respondents) have failed to discharge their burden: Rhesa Shipping Co SA v Edmunds [1985] 1 WLR 948 (at 955–956 per Lord Brandon, Lords Fraser, Diplock, Roskill and Templeman agreeing). Relatedly, and importantly, given my rejection of Mr Lehrmann’s account of what went on, it must be borne in mind that a civil onus of proof is not discharged by mere disbelief in opposing evidence (see, for example, in the context of a criminal onus, Liberato v R (1985) 159 CLR 507 (at 515 per Brennan J)).

Decision

Reasons for decision

No expert evidence was called on behalf of Kruger to comment upon what was recorded in SK-01. The Court finds that the evidence of Salome was of little weight. CONCLUSION The Court has not been persuaded that it should make findings consonant with either of the two versions respectively advanced by Kruger and Thompson. The Court has doubts concerning each version. The Court was unable to come to a view that inferences able to be drawn from adduced evidence were such that one inference was more probable than the other. The Court has found, however, that at all times leading up to the time that Kruger and Thompson entered the Bridal Suite, Kruger did not find any of Thompson’s conduct toward her unwelcome. The Court is also unable to come to any concluded view, and is in doubt about, whether any post Bridal Suite conduct was unwelcome, based upon the Court’s doubts about what in fact occurred in that Suite. The onus in that regard has failed to have been discharged. The applicant Kruger has failed to discharge the onus of proof which she bore. In the light of such finding, it is unnecessary to deal with the question of compensation or damages. The Originating Application is accordingly dismissed, and it is so ordered.

Ratio Decidendi

Legal Principle Established

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