HUMAN RIGHTS – discrimination – harassment on the ground of sex and sexual harassment – where applicant alleged harassment on the ground of sex and sexual harassment by the principal and sole director of her employer – where alleged conduct clearly amounted to sexual harassment within meaning of s 28A of Sex Discrimination Act 1984 (Cth) (SDAct) if established – where respondent denies all alleged conduct – whether comments about other female employees was conduct “in relation to” to complainant when made in her presence, and thus harassment on the ground of sex within the meaning of s 28AA of the SD Act – whether the applicant discharged the onus of proof to establish that the alleged conduct occurred – HELD: respondent contravened s 28B(2) and (3) of the SD Act by sexually harassing applicant
HUMAN RIGHTS – victimisation – where correspondence from applicant’s lawyers informed respondent her intention to further pursue complaint of sexual harassment – whether sending of purported concerns notices under s 12A of the Defamation Act 2005 (NSW) caused detriment to applicant and amounted to victimisation contrary to s 47A of SD Act – HELD: respondent contravened s 47A of SD Act
Administrative and Constitutional Law and Human Rights
Number of paragraphs:
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Magar v Khan [2025] FCA 874
Case
[2025] FCA 874
Decision Date
CaseChat Overview and Summary
Magar v Khan concerned the applicant’s allegations of sexual harassment and victimisation by her employer. The respondent, the principal and sole director of the company, denied all allegations. The court was tasked with determining whether the applicant's account of the events was more probable than not, considering the respondent's denials. The applicant alleged that the respondent had sexually harassed her through various incidents, including the Hickey Incident, Sexual Comments, and the Car Incidents, and that the respondent had victimised her for complaining about the harassment. The court considered the credibility of the expert evidence provided by Dr. Fukui, who assessed the applicant's mental health and its impact on her reliability as a witness. The court concluded that the applicant's account of the events was more probable than not and found that the respondent contravened the Sex Discrimination Act by sexually harassing and victimising the applicant.
The court found that the comments made by the respondent about other female employees, when made in the applicant’s presence, constituted harassment on the ground of sex under the Sex Discrimination Act. Additionally, the court determined that the respondent's actions following the applicant’s intention to further pursue her complaint amounted to victimisation. The court also noted that the applicant was awarded $305,000 in damages and compensation, which included general damages for sexual harassment and victimisation, aggravated damages, and economic loss. The court ordered the parties to confer and submit agreed or competing orders within 14 days. If the parties could not agree on the orders, they were to provide written submissions and evidence according to a timetable agreed upon by the parties or ordered by the court.
Orders
Orders of the court
1. The parties confer and within 14 days or such other time as may be allowed, provide by email to the chambers of Justice Bromwich agreed or competing orders to give effect to these reasons as to declarations of contravention.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
It follows that I am primarily called upon to determine whether Ms Magar’s account of what took place in relation to the Hickey Incident, Sexual Comments and the Car Incidents, as well as the Group Behaviour and the Managers’ Behaviour should be preferred to the denials by Mr Khan, to the point of being more probable than not, mostly by reference to their competing evidence.Expert evidence of Dr Fukui The evidentiary value of Dr Fukui’s report, as affected by the cross-examination and re-examination of her, foundationally depends upon the acceptance of the SD Act allegations made by Ms Magar and thus of the information about those events that she provided at a relatively short assessment interview, supported by consultation notes from six sessions she had with a treating psychologist, Mr Shalav Mehta, between early May and mid-June 2024. It is therefore evidence that mostly goes towards the issue of remedies. Components of Dr Fukui’s evidence are also relevant to the assessment of aspects of Mr Khan’s case which alleged that Ms Magar was, by reason of a mental illness, unable to give reliable evidence as to the key events in the period from mid-January to mid-February 2023 (that is, the Hickey Incident, Sexual Comments and the Car Incidents). This aspect of Mr Khan’s case depends upon the rejection of Dr Fukui’s opinion that Ms Magar’s psychosis was confined to a singular episode some 12 months before the key alleged events took place and had not recurred. It is convenient to deal with this limited aspect of Dr Fukui’s evidence at the outset, as it has some bearing on both the evidence of Mr Khan and Ms Magar. Dr Fukui considered that it was unlikely that Ms Magar’s recollection of the incidents between mid-January and mid-February 2023 was affected by psychosis, with her psychosis being limited to one episode that had fully remitted almost a year earlier. In cross-examination, Dr Fukui explained that psychosis can be limited to singular episodes, and only with repeated or prolonged episodes would a diagnosis like schizophrenia be considered. She said psychiatrists therefore use the language of “first episode psychosis” to describe a case like Ms Magar’s, and that it is an ordinary and precautionary approach that patients be prescribed with antipsychotic medication for 6 months to a year after experiencing their first psychotic episode. This is done in case the condition was more serious than had been able to be detected at the time it was first diagnosed. Dr Fukui therefore rejected the suggestion that the prescription of antipsychotic medication to Ms Magar for a year after her January 2022 psychotic episode indicated that she had been experiencing longer-term psychosis. Dr Fukui noted that in this period, Ms Magar was under the care of a HeadSpace psychiatrist, and that if she had relapsed she would have been diagnosed accordingly. Dr Fukui said that the recommendation made by a HeadSpace psychiatrist to come off antipsychotic medication in January 2023 was a very strong indication that Ms Magar had not relapsed. Her knowledge of Ms Magar’s treatment by HeadSpace is based on Ms Magar’s account of it.
Decision
Reasons for decision
No particular amount was suggested for aggravated damages arising from the way in the which the proceeding was defended. In the circumstances, including the relatively fleeting nature of the conduct complained of, I consider an award of aggravated damages of $5,000 is appropriate. G. Overall Conclusions Ms Magar has substantially succeeded in her claims. I find that she was sexually harassed by Mr Khan and victimised for complaining about his unlawful conduct. I am also satisfied that his conduct caused her to suffer loss and damage. The parties will be directed to confer and within 14 days or such other time as may be allowed, provide agreed or competing orders to give effect to these reasons as to declarations of contravention. Once that has been furnished, I will additionally make orders to the following effect, ordering Mr Khan to pay Ms Magar a total of $305,000. This is made up of:(a)Damages in the sum of $175,000, comprising:(i)general damages for sexual harassment in the sum of $160,000;(ii)general damages for victimisation in the sum of $10,000;(iii)aggravated damages arising out of an aspect of the way in which Mr Khan’s case was run at trial in the sum of $5,000;(b)compensation in the sum of $130,000, comprising:(i)$90,000 for past economic loss up the date of the conclusion of the hearing on 5 June 2025;(ii)$40,000 for future economic loss from the conclusion of the hearing. No reason has been advanced for costs not to follow the event and therefore for Mr Khan not to be ordered to pay Ms Magar’s costs. If that is not disputed, the draft orders should reflect that. However, in case there is some reason for a different costs order to be made, short written submissions and any evidence can be filed according to a timetable agreed between the parties, or by a timetable ordered by made in chambers, considering the parties’ competing timetables. Any such agreed or competing timetables should be furnished to my chambers by email within 7 days.