Lee v Smith & Ors (No. 2)
[2007] FMCA 1092
•6 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LEE v SMITH & ORS (No.2) | [2007] FMCA 1092 |
| HUMAN RIGHTS – Remedies – re-employment – economic loss – future economic loss – interest – costs – not appropriate to order an apology. |
| Federal Magistrates Act 1999 (Cth) Safety, Rehabilitation and Compensation Act 1988 (Cth) |
| Slattery v Comcare (1996) 70 FCR 131 Forbes v Australian Federal Police (Commonwealth of Australia) [2004] FCAFC 95 (5 May 2004) |
| Applicant: | CASSANDRA LEKEI LEE |
| First Respondent: | AUSTIN SMITH |
| Second Respondent: | RODERICK HOMER |
| Third Respondent | BERNARD DONCHI |
| Fourth Respondent | COMMONWEALTH OF AUSTRALIA (DEPARTMENT OF DEFENCE) |
| File Number: | BRG 204 of 2004 |
| Judgment of: | Connolly FM |
| Hearing dates: | 8 – 12 May 2006, 6 – 14 November 2006, 14 June 2007 |
| Date of Last Submission: | 14 June 2007 |
| Delivered at: | Brisbane |
| Delivered on: | 6 July 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Henry SC |
| Solicitors for the Applicant: | Whettanhall Silva Solicitors |
| Counsel for the Respondent: | Mr Murphy SC |
| Solicitors for the Respondent: | Carew Solicitors |
| Counsel for the Second, Third and Fourth Respondents: | Mr Horneman-Wren |
| Solicitors for the Second, Third and Fourth Respondents: | Blake Dawson Waldron |
ORDERS
That the Court declares that the First, Second, Third and Fourth Respondents have discriminated against the Applicant in the manner described and set out in the reasons for judgment delivered on
23 March 2007.
That when the Applicant initially returns to work she be employed by the Fourth Respondent in a department other than the Department of Defence.
That the First, Second, Third and Fourth Respondents be jointly and severally responsible for the payment of general damages to the Applicant in the sum of $100,000.00 together with interest thereon from 23 March 2007 at the rate of 10.25 percent.
That the First, Second, Third and Fourth Respondents be jointly and severally responsible for the payment of special damages to the Applicant in the sum of $232,163.22 together with interest on the amount of $53,572.72 of that amount at the rate of 5.125 percent from 5 December 2001 to 14 June 2007 and thereafter at 10.25 percent.
That the First, Second, Third and Fourth Respondents be jointly and severally responsible for the payment to the Applicant for her past medical expenses, the sum of $20,259.10.
That the First, Second, Third and Fourth Respondents be jointly and severally responsible for the payment to the Applicant the sum of
$35, 000.00, being $30,000.00 for future loss of income and $5000.00 for future medical expenses.
That the First, Second, Third and Fourth Respondents be jointly and severally responsible for the payment of the Applicant’s cost of these proceedings, such costs to be taxed in accordance with the Federal Court Rules.
That there be liberty to apply for a period of 21 days with respect to the form and content of these orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CAIRNS |
BRG 204 of 2004
| CASSANDRA LEKEI LEE |
Applicant
And
| AUSTIN SMITH |
First Respondent
| RODERICK HOMER |
Second Respondent
| BERNARD DONCHI |
Third Respondent
| COMMONWEALTH OF AUSTRALIA (DEPARTMENT OF DEFENCE) |
Fourth Respondent
REASONS FOR JUDGMENT
Proceedings
Following the judgment delivered on 23 March 2007 which document I refer to and incorporate into these my further reasons, each of the parties presented further submissions on 14 June 2007 with respect to the further relief sought by the Applicant.
Re-employment
The first issue to be determined is whether there should be any order with respect to the Applicant’s future employment with the Commonwealth. In fact the parties were at idem that the Applicant is still employed by the Commonwealth and the real issue is whether there should be an order that when the Applicant returns to work, it should be in a department other than the Department of Defence and other than with Centrelink. Consequently it would be inappropriate to make an order that the Commonwealth re-employ the Applicant. However, it is conceded there is power to make an order that the Applicant be re-employed other than in those particular Departments but that it is a matter where the Court should exercise its discretion in determining whether or not to make such an order.
With respect to an order that the Applicant be employed with a department other than with the Department of Defence when she returns to work, the Respondents’ strongest argument seemed to be that there would be no time limit on such order and that it may be seen as a permanent order. Mr Horneman-Wren, counsel for the second, third and fourth Respondent offered the example of the situation where a government department or agency was abolished sometime in the future and it may give rise to circumstances where a transfer to or a placement with the Department of Defence would be a very real alternative. It may also be the case that in many years time, the Applicant would have a different view of re-employment with the Department. To the extent that such an order ought to preclude the Applicant ever returning to the Department of Defence, I agree with the Respondents’ submissions. However, it seems to me that certainly when the Applicant initially returns to work, it ought to be with a department other than the Department of Defence. It would be, from the Applicant’s point of view, intolerable to be forced to return to work with the very department whose conduct has been responsible for the suffering she has endured and to that effect, it is important that there be an order which provides her with the protection required to preclude such an event occurring. Further, it is not difficult to anticipate that she may currently harbour a fear of being returned to the Department of Defence and that the order sought will alleviate that fear. I am therefore satisfied that it is appropriate to make such an order that ‘when the Applicant initially returns to work, she be employed in a department other than in the Department of Defence’. An order in this form in my view, does not confer upon the Applicant a privilege or benefit not enjoyed by other ongoing members of the public service. It is an order that will provide the appropriate level of protection to the Applicant in the circumstances that have arisen in these proceedings.
The Applicant, through her counsel Mr Henry, also requested that the restraint on employment of the Applicant when she returns to work be extended to Centrelink. Counsel argued that she would not be in the position of risking a return to Centrelink but for what was done to her by the Department of Defence. However, I agree with the submissions of
Mr Horneman-Wren that there is nothing that arises from the evidence to support that restraint other than at one point in time past she was able to secure a transfer from that agency. In my view that is not a valid reason for acceding to the Applicant’s preference not to be re-employed with Centrelink and I do not propose to make such an order.
Economic loss
The Applicant seeks by way of past economic loss, the sum of
$226,143.02 (being the gross salary she would have received for the period from 5 December 2001, the date she finished work until 14 June 2007, the date of final submissions). She also seeks increments for the same period which total $6020.00. This is an increment that she would have received in the event that her performance had been satisfactory. During this period of time, she received from Comcare, the amount of $178,615.30.
The Respondents’ argument advanced by Mr Horneman-Wren, counsel for the Second, Third and Fourth Respondents and adopted by
Mr Murphy SC for the First Respondent was that the Applicant had, throughout the period of her absence from her employment, been paid compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth). It is contended that any damages that the Applicant receives in these proceedings may well constitute compensation for a separate injury and therefore would not be repayable under s.48(3) of the Safety, Rehabilitation and Compensation Act 1988 (Cth). Counsel referred me to a number of authorities in support of that proposition being Slattery v Comcare (1996) 70 FCR 131, McIntyre v Comcare (1998) 50 ALT 416 and Forbes v Commonwealth of Australia [2003] FMCA 140 (26 June 2003). It was submitted that in the circumstances of this matter, the Court should adopt the same robust approach taken by Driver FM in Forbes, that is, that the Applicant has been compensated for loss of income and no award ought to be made for past economic loss. It was further contended that the same robust approach ought to be taken with respect to future economic loss.
By the time these proceedings were nearing their conclusion,
Mr Horneman-Wren, partially as a result of a concession made by
Mr Henry SC, made two concessions, the first as set out in the transcript of 14 June 2007 at page 35, line 24:
“But the effect of the statute, in my submission, is this, that if there is a payment, that as my learned friend concedes, would be for the same injury as that which she – a payment of damages – an award of damages in this matter which would be for the same injury as that which she has received compensation, then the effect of 48(3) is, as my learned friend puts it, which is that matter would have to be repaid. That takes it beyond the Slattery and Comcare, McIntyre and Comcare, and indeed the overall robust approach of Driver FM because if they were aligned as the same injury then the effect of 48(3) would be that it would need to be paid back and if there was no award made then effectively what has been given would have to be given back albeit that – so that’s the effect of 48(3) and I think to a large extent, we’re on common ground as far as that’s concerned…
The second concession is set out on page 36 of the same transcript at line 14:
…Then there is the pay back effect which is if you get paid damages after you’ve received compensation then you have to pay back the amount of compensation that’s been paid and that would seem to contemplate necessarily the gross amount. So the figures that we’ve provided you are all on a gross basis because that seems to be what’s dictated by 48(3) in terms of repayment. I think we’ve agreed on that approach”.
In the circumstances of this matter, it is clear that the Applicant has made a claim for her loss of income. It is equally clear that she has received compensation from Comcare for part of that loss. Comcare is not a party to these proceedings and if I adopted the robust approach suggested initially by counsel for the Respondents, then it is at least possible that Comcare may institute proceedings against the Applicant for recovery of any monies received pursuant to an order in these proceedings. The reality however, given concessions by both counsel, is that the Applicant will be required to repay what she has received from Comcare from any amount that she receives for her loss of past income and in my view it is appropriate that she be compensated for that loss of income. As I have already indicated, the gross amount of her loss of income is agreed at $226,143.02. In addition, there is the amount of $6020.00 that the Applicant would have received by way of yearly increments, not as a matter of course but subject to satisfactory performance. With respect to the amount of $6020.00, I accept
Mr Henry’s submissions that there is no evidence to suggest, save for the issues raised in these proceedings, that the Applicant would have been otherwise than positively assessed in respect of her performance and the amount of $6020.00 should therefore be included in her past economic loss making a total past gross loss of $232,163.02. Further, I am satisfied that she should be compensated for this amount and I am further satisfied that upon receipt of these funds, she will be required to repay to Comcare, the amount of $178,615.30.
Medical expenses (past)
The Applicant seeks the amount of $20,759.10 by way of payment of medical expenses consisting of $19,759.10 being the medical costs paid by Comcare and refundable to Comcare. In addition, the Applicant has claimed a further $1000.00 for sundry other medical expenses. That is of the order of nearly $200.00 per annum which seems a little high but at the same time, it is not unreasonable to anticipate that some of the medical expenses that were incurred prior to Comcare being involved would have been of some significance. I propose to allow the sum of $500.00 for sundry medical expenses.
Future medical expenses
With respect to the claim for future medical expenses there is very little to base such an assessment on and as a result it must be of a fairly arbitrary nature. I must have regard to the fact that $20,000.00 has been accumulated in medical expenses over the last 5 or 6 years and that during at least some of that time, the Applicant was paying approximately $200.00 a session for a psychiatrist on a fortnightly basis. Dr Woolridge in his evidence in November last year indicated that while his diagnosis had not changed, he considered that the Applicant was no longer depressed and she would be able to return to the workplace in a graduated way any time shortly thereafter. It must be noted however that she still has not returned to the workplace as of 14 June this year. In my view $5000.00 is not an unreasonable amount to allow for future medical expenses, particularly given that the original diagnosis was that it was more likely than not a permanent injury and may well need treatment in the future.
Future economic loss
The Applicant claims for this component of damage, the amount of $200,000.00. However that figure was advanced by the Applicant at a time when it was not thought she would be able to be back in the workforce for a number of years. The only real evidence I have of her ability to return to the workforce is that of Dr Woolridge which is as set out on page 150 at paragraph 192 of the judgment (which quote comes from the original transcript):
“Allowing both for your perusal of that material and for your consultation with her last week, firstly, in a general sense, is there any deviation to the opinions you hitherto expressed about her diagnosis?”
“No, my diagnosis remains as it was, although there has been significant improvement in her mental state.”
“That’s really the only thing I want to now develop with you in evidence-in-chief before my friends ask you some questions. That’s where she’s at in terms of, depending on an outcome here, there could be a need to assess her future economic loss; in other words, how long she’s going to be off work, potentially losing money. So your assessment as to how soon and in what way she can be in a position to return to work?”
“Yes, well, in my opinion Ms Lee is no longer depressed. She still has symptoms of post-traumatic stress but she no longer does, if we refer to the diagnostic criteria for post-traumatic stress disorder. I think that there has been a big enough improvement in her mental state for her to begin to contemplate returning to work and I would have thought the most appropriate thing is that she undergo some form of retraining and then have a gradual return to the workplace. I think that could start more or less at any time.”
On that evidence, I would anticipate she will be back in the workforce in the very near future. However it is contended on her behalf that she may not be able to regain her former level of working ability, let alone improve upon it and that she may never again work at her previous level. Certainly there is some support for that prognosis from
Dr Woolridge’s evidence contained in his first report:
“Such has been the blow to her self-esteem and confidence that I believe it quite possible that she will never work again at her previous level”.
There does not seem to be anything contained in Dr Woolridge’s later evidence which qualifies his original prognosis that she may never be able to work again at the same level. I must also have regard to the fact that she has been unable to work for a lengthy period of time and unable to advance her career and her salary band. She may not be able to achieve promotions in the future that she might have expected to achieve if she had been able to work at the same level. However, I accept what is said by counsel for the Respondents that there is no evidence of an available career path or where she could have expected to be had she not been affected by the years away from the workforce. Consequently, the approach to such a task must necessarily be a relatively conservative one. I am helped in making that assessment by Mr Henry’s reference to what is said in Butterworths (Third edition) Assessment of Damages for Personal Injury and Death:
Even in an economy free of inflation, a person’s earnings are likely to increase over time. Such increases may result from a number of different factors, some linked to the specific individual and some linked to broader societal forces. Thus an individual may be on a scale which provides for regular increases simply due to experience and effluxion of time or on one which provides for merit-based increases. Similarly, there may be the possibility of promotion to a different position with the same employer or a change to a more enumerative job elsewhere. In addition, the wages of workers as a class may rise as they share an increased productivity due to a greater efficiency and technological advances.
Finally, I agree with Mr Henry’s submission, while the task is an imprecise one, it is a reasonable inference to draw that in the future the Applicant would have been likely to end up better than simply marking time had she not been absent from the workforce for five or six years. Taking all of these matters into account, I am of the view that
$30, 000.00 is an appropriate figure for loss of future income.
Apology
Each of the First, Second and Third Respondents denied in their evidence that they sexually harassed, victimised or discriminated against the Applicant. I accept the submissions on their behalf that there is no utility in ordering individuals to apologise in circumstances where they have denied the conduct against them. So far as the Commonwealth is concerned, there seems some support for what the Respondent says, that in addition to the issues of utility, there is no basis upon which the Court can make such an order against the Commonwealth of Australia (see Forbes v Australian Federal Police (Commonwealth of Australia) [2004] FCAFC 95 (5 May 2004), 3 and 7). In all of the circumstances, I do not propose to make any order for an apology and in particular, as it requires the expression of a sentiment not genuinely felt (see Branson J in Jones v Toben [2002] FCA 1150 (17 September 2002), 106).
Interest
The Applicant seeks an order pursuant to s.76 of the Federal Magistrates Act 1999 (Cth), that she is entitled to interest on money awarded for her loss from when the cause of action arose. It was common ground that the interest ought to apply only to that part of the past loss which she was actually deprived of and an averaging approach ought to be adopted with respect to the period of time over which the loss was suffered.
The findings with respect to the general damages which arose from pain, suffering, hurt and humiliation that continued over a period of five or six years, as indicated in paragraph 215 of the judgment, were assessed at $100,000.00 as at 23 March 2007. In assessing that amount as at that date, account has been taken on the fact that the Applicant has not received those monies. Indeed, she still has still not received them and may not for some time.
In my view, interest should run from the date of the judgment,
23 March 2007at 10.25 percent. The Applicant should also be paid interest on the amount of $53,527.72, being the loss of past income, not covered by Comcare at the rate of 5.125 percent for the period of
5 December 2001to 23 March 2007 and thereafter at the rate of 10.25 percent.
Costs
The Applicant asks for an order that the Respondents pay the Applicant’s costs, such costs to be taxed pursuant to the Federal Court Rules. The Respondents ask that an order for costs be taxed pursuant to the Federal Magistrates Court Rules.
It is clear that the Applicant is entitled to an order for costs in that she has been successful and costs ought to follow the event. Counsel appropriately conceded that the Court has a discretion as to whether they are ordered in accordance with the Federal Court Rules or the Federal Magistrates Court Rules and in that I accept the submission of Mr Henry, SC that it is appropriate when determining that issue to take into account the complexity of the matter, the very extensive amount of evidence, the length of the hearing and the difficult nature of the factual issues involved.
In considering all of these circumstances I am satisfied that it is appropriate to make an order for costs in the Applicant’s favour to be taxed at the Federal Court scale
Accordingly, I order as follows:
a)That the Court declares that the First, Second, Third and Fourth Respondents have discriminated against the Applicant in the manner described and set out in the reasons for judgment delivered on 23 March 2007.
b)That when the Applicant initially returns to work she be employed by the Fourth Respondent in a department other than the Department of Defence.
c)That the First, Second, Third and Fourth Respondents be jointly and severally responsible for the payment of general damages to the Applicant in the sum of $100,000.00 together with interest thereon from 23 March 2007 at the rate of 10.25 percent.
d)That the First, Second, Third and Fourth Respondents be jointly and severally responsible for the payment of special damages to the Applicant in the sum of $232,163.22 together with interest on the amount of $53,572.72 of that amount at the rate of 5.125 percent from 5 December 2001 to 14 June 2007 and thereafter at 10.25 percent.
e)That the First, Second, Third and Fourth Respondents be jointly and severally responsible for the payment to the Applicant for her past medical expenses, the sum of $20,259.10.
f)That the First, Second, Third and Fourth Respondents be jointly and severally responsible for the payment to the Applicant the sum of $35,000.00, being $30,000.00 for future loss of income and $5000.00 for future medical expenses.
g)That the First, Second, Third and Fourth Respondents be jointly and severally responsible for the payment of the Applicant’s costs of these proceedings, such costs to be taxed in accordance with the Federal Court Rules.
h)That there be liberty to apply for a period of 21 days with respect to the form and content of these orders.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Connolly FM
Associate: Deborah Rea
Date: 5 July 2007
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