Poniatowska v Hickinbotham
[2009] FCA 680
•23 June 2009
FEDERAL COURT OF AUSTRALIA
Poniatowska v Hickinbotham [2009] FCA 680
HUMAN RIGHTS – sexual harassment – various allegations of conduct constituting sexual harassment – whether employee sexually harassed – whether conduct constituted “unwelcome conduct of a sexual nature” – whether claims made out on evidence
HUMAN RIGHTS – sex discrimination – female employee complained about sexual harassment in robust work environment – complaints dealt with inadequately – employee subsequently given warnings about unsatisfactory work performance – employment purportedly terminated on basis of unsatisfactory work performance – whether warnings about unsatisfactory work performance warranted in the circumstances – whether purported termination of employment for sufficient reason, or whether related to her complaints about sexual harassment – whether employer discriminated against employee on grounds of her sex
Human Rights and Equal Opportunity Commission Act 1986 (Cth) ss 3, 46PH(1)(i), 46PO
Sex Discrimination Act 1984 (Cth) ss 5, 14(2), 28A, 28B, 94
Racial Discrimination Act 1975 (Cth)
Evidence Act 1995 (Cth) s 140Aldridge v Booth (1988) 80 ALR 1 cited
Leslie v Graham [2002] FCA 32 citedMcDonald v State of South Australia [2008] SASC 134 cited
Delooze v Healey [2007] WASCA 157 cited
Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 cited
Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2007] NSWSC 104 cited
Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2008] NSWCA 217 cited
Van Efferen v CMA Corporation Limited [2009] FCA 597 followed
Jones v Toben (2002) 71 ALD 629 cited
Jones v The Bible Believers’ Church [2007] FCA 55 citedMALGORZATA BARBARA PONIATOWSKA v ALAN HICKINBOTHAM, MICHAEL HICKINBOTHAM, MARK FLYNN, ROZ SHARRAD, REMO LOTITO, HICKINBOTHAM HOMES PTY LTD and EMPLOYMENT SERVICES AUSTRALIA PTY LTD
SAD 120 of 2007
MANSFIELD J
23 JUNE 2009
ADELAIDE
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SAD 120 of 2007
BETWEEN: MALGORZATA BARBARA PONIATOWSKA
Applicant
AND: ALAN HICKINBOTHAM
First RespondentMICHAEL HICKINBOTHAM
Second RespondentMARK FLYNN
Third RespondentROZ SHARRAD
Fourth RespondentREMO LOTITO
Fifth RespondentHICKINBOTHAM HOMES PTY LTD
Sixth RespondentEMPLOYMENT SERVICES AUSTRALIA PTY LTD
Seventh Respondent
JUDGE:
MANSFIELD J
DATE OF ORDER:
23 JUNE 2009
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1.The seventh respondent pay to the applicant by way of compensation for unlawful discrimination contrary to s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) the sum of $466,000, which sum includes interest.
2.The applicant and the seventh respondent have liberty to apply for an order that the said compensation, or some part of it, be paid by some one or more of the second, third, fourth or fifth respondents.
3.The seventh respondent pay to the applicant her costs of the application.
4.The seventh respondent have liberty to apply for an order that some part of the costs ordered to be paid by it be paid by some one or more of the second, third, fourth or fifth respondents.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SAD 120 of 2007
BETWEEN: MALGORZATA BARBARA PONIATOWSKA
Applicant
AND: ALAN HICKINBOTHAM
First RespondentMICHAEL HICKINBOTHAM
Second RespondentMARK FLYNN
Third RespondentROZ SHARRAD
Fourth RespondentREMO LOTITO
Fifth RespondentHICKINBOTHAM HOMES PTY LTD
Sixth RespondentEMPLOYMENT SERVICES AUSTRALIA PTY LTD
Seventh Respondent
JUDGE:
MANSFIELD J
DATE:
23 JUNE 2009
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
BACKGROUND
This action arises from the events leading up to and surrounding the termination of the employment of the applicant, Ms Poniatowska with the seventh respondent, Employment Services Australia Pty Ltd (ESA).
Ms Poniatowska was born in Poland in 1967. She completed her education in Poland, including a law degree at Warsaw University, just before she and her husband moved to Australia in 1991. They settled in Adelaide. They separated in 2002 and were subsequently divorced in 2004. Ms Poniatowska has had the care and custody of the two children of the marriage, both now in secondary school, since the separation.
After settling in Adelaide, Ms Poniatowska successfully completed a course in English speaking – she is now proficient in English with a noticeable accent. She also has undertaken courses in Information Technology, a Graduate Diploma of Business (one year) and a Small Business Management Course. Most recently, in 2005 she completed a Master of Business (Administrative Management) at the University of South Australia. In July 2006, after the events to be discussed below, she commenced to study law at the University of Adelaide, but has not yet progressed very far in that course.
In January 1998, Ms Poniatowska commenced work as an Administrative Services Officer in the Commonwealth government for two years. She then worked as a Student Adviser at the University of South Australia for two years. From January 2002, for a further period of two years, she worked as an Account Manager at an Adelaide radio station. In 2004, she left that employment to complete her Master of Business degree full time.
Then, in January 2005, she commenced work for ESA. She worked for ESA from 30 January 2005 to 21 February 2006, including a probationary period of six months, which expired on 30 July 2005. It was during her employment with ESA that the events the subject of this proceeding occurred. She was employed as a building consultant, engaged in selling house and land packages on behalf of the sixth respondent Hickinbotham Homes Pty Ltd (Homes) to members of the public, or if the particular client was proposing to build on land already owned, to sell house packages to members of the public.
Both ESA and Homes are members of a family group of companies called the Hickinbotham Group. It is convenient to describe them collectively as the Hickinbotham Group during these reasons, although strictly speaking the relevant employer was only ESA. It is common ground that if any orders are to be made against a corporate respondent, those orders should be made against ESA only.
Ms Poniatowska obtained employment with ESA in response to an advertisement. She was interviewed by the managing director of ESA and Homes, the second respondent Michael Hickinbotham (Mr M Hickinbotham), and by the fourth respondent Roz Sharrad before being given that work.
Subsequent to the termination of her employment with ESA, in May 2006 she obtained employment as a sales consultant with another building company, AV Jennings Homes. She held that employment until September 2006. She says that she could not continue that employment due to health problems arising from events which occurred in the course of her employment with ESA. It will be necessary to address that allegation later.
The Hickinbotham Group has had a long history as a house builder and land developer, back to 1955, when the first respondent Alan Hickinbotham (Mr A Hickinbotham) commenced that business with his father. Between 1960 and 2001, Mr A Hickinbotham was the Managing Director of the Hickinbotham Group. From that date, his son Mr M Hickinbotham took over that role. Mr A Hickinbotham retained an active interest in the business of the Hickinbotham Group. During the relevant period and at least to the end of 2006 he was the Chairman of the Group. He attended the office during 2005 and 2006 on a regular basis, although not full-time.
THE EVENTS LEADING UP TO TERMINATION
Ms Poniatowska’s employment with ESA was terminated on 21 February 2006, at least on the face of it for unsatisfactory performance.
There were formal warning notices given to her in the period of time leading up to the termination of her employment.
On 21 November 2005, she was given a written warning by letter dated 18 November 2005 about the preparation and presentation of her files by the Contracts Manager, Renato Daminato (the first warning letter).
On 13 December 2005, she was given a further warning by letter under the hand of Mr M Hickinbotham concerning her acceptance of a deposit from a client for a block of land known as Lot 34 Albany Way, Seaford Rise (the second warning letter). The second warning letter was given on the basis that Ms Poniatowska had been told by the land development manager Matt Gazzard not to proceed with the sale of that or certain other blocks of land until an issue concerning a roundabout was resolved, as changes to the dimensions of the block might be made, and secondly because she had assured the purchaser that the land opposite Lot 34 would be dedicated as a reserve and would not be built on, although it was earmarked as a future development site.
On 20 December 2005, a further warning in writing was given to Ms Poniatowska, again under the hand of Mr M Hickinbotham, over her acceptance of a deposit for a further block of land known as Lot 21 Torquay Drive, Seaford Rise (the third warning letter). The third warning letter was given on the basis that Ms Poniatowska had taken a deposit from the client for Lot 21 Seaford Rise when she should not have done so, as the block was “on hold”, and subsequently sold by another building consultant.
In early January 2006, Ms Poniatowska endeavoured to speak to Mr M Hickinbotham concerning those warnings, as she regarded them each as unfair. Those warnings were not withdrawn.
On 10 February 2006, Ms Poniatowska was given a further letter dated 9 February 2006, again under the hand of Mr M Hickinbotham, referring to the earlier warning letters of 18 November 2005 and 13 December 2005, but not to the letter of 20 December 2005, and to “further serious errors” in her documentation and file preparation and presentation. It also referred to a further complaint from a client, not specified in any detail in that letter. It notified her of an investigation to be undertaken into that complaint and to her immediate suspension. A meeting was proposed on 15 February 2006 to “put the allegations to you and obtain your response” (the suspension letter).
That meeting subsequently took place on 21 February 2006, when Ms Poniatowska’s employment was terminated. The termination was oral, but subsequently confirmed by letter from Mr M Hickinbotham of 23 February 2006 (the termination letter).
THE ALLEGATIONS
Ms Poniatowska did not take her termination lying down. On 10 March 2006, she applied to the Industrial Relations Commission of South Australia for reinstatement, alleging her dismissal was unfair. A conciliation conference was conducted, as it apparently transpired, unsuccessfully. On 10 May 2006, Ms Poniatowska withdrew that application.
On 20 August 2006, Ms Poniatowska made a complaint to the Human Rights and Equal Opportunity Commission (HREOC) under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (the HREOC Act). She alleged in her complaint that during her employment with ESA she had been the victim of sexual discrimination, racial discrimination and sexual harassment. That complaint was, as required by the HREOC Act, investigated by a delegate of the President of HREOC. On 27 June 2007, the delegate of the President of HREOC terminated that complaint, pursuant to s 46PH(1)(i) of the HREOC Act, because the delegate was satisfied that there was no reasonable prospect of the matter being settled by conciliation.
Pursuant to s 46PO(1) of the HREOC Act, Ms Poniatowska then instituted this proceeding alleging unlawful discrimination on the part of ESA and a number of its employees, including Mr A Hickinbotham, Mr M Hickinbotham and Ms Sharrad. As required by s 46PO(3), she alleges the same unlawful discrimination, at least substantially so, arising out of the same or substantially the same acts as those which were the subject of her complaint to HREOC.
Ms Poniatowska alleges that she was subject to inappropriate conduct during the course of her employment with ESA on a number of separate occasions. Her allegations can conveniently be briefly described as follows:
1.In early April 2005, Mr A Hickinbotham commented to her in the workplace, in the presence of others, that she had “two good assets” whilst staring at her breasts (the April 2005 allegations).
2.In May 2005, the third respondent Mark Flynn, another sales consultant employed by ESA, sent her three unsolicited emails and a number of SMS text messages inviting her to have a sexual relationship, which humiliated and shocked her (the May 2005 allegations). Ms Poniatowska reported that conduct to her supervisor Ms Sharrad. No action was taken and Ms Sharrad commented to her “what do you expect with a face like yours?”
3.In June 2005, Ms Poniatowska was rostered to work with the fifth respondent Remo Lotito. She says that was contrary to her request not to work with him and (she suspects) for the purpose of encouraging her to have an affair with him which would have led to the termination of her employment with ESA. Ms Sharrad insisted that she work with Mr Lotito. At about that time, that is in June 2005, Ms Sharrad commented to the applicant in the presence of other employees “I told Remo [Mr Lotito] not to fuck my consultants”, and she felt embarrassed and humiliated (the June 2005 allegations). As a result of a complaint to Mr M Hickinbotham about Ms Sharrad’s remark, Ms Sharrad apologised to Ms Poniatowska, but Mr M Hickinbotham’s subsequent correspondence of 9 August 2005 was unsympathetic to her concerns.
4.In June 2005, Mr Lotito sent Ms Poniatowska a coarse MMS picture message on her mobile telephone depicting a woman giving a man oral sex and a text message “U have 2 b better” and in June or July 2005, Mr Lotito then pestered her on a number of occasions by telephone to have sex with her (the Lotito allegations). She did not formally complain to her employer about that, but mentioned it to another consultant who did report it. Ms Poniatowska says the investigation of that matter was unsatisfactory.
5.On 29 August 2005, Ms Sharrad asked Ms Poniatowska to enter into a sexual relationship with a man from another building company, so that the Hickinbotham Group could secure a land deal with that company (the August 2005 allegations).
6.On 30 September 2005, Mr M Hickinbotham kissed her “strongly on the mouth” whilst on the dance floor at a function being conducted by her employer (the September 2005 allegations).
As a result of that conduct and the way it was dealt with by ESA, from about July 2005, Ms Poniatowska alleges that she came to be isolated within the office, receiving suggestive looks or sniggering looks and being excluded from conversations in circumstances where she perceived that others were talking about her. From about September 2005, she complained that she was treated less favourably than other building consultants, and from early December 2005 her clients were transferred to other building consultants without justification.
In addition, over the period of time from July 2005, as she reported the offensive conduct to Ms Sharrad and to Mr M Hickinbotham, no satisfactory response or investigation was carried out, and she was in a sense just left hanging. It is common ground that the Hickinbotham Group had no formal policy for dealing with complaints of sexual harassment or sexual discrimination. There is a significant contest as to how her complaints were received and addressed by the Hickinbotham Group, particularly through Ms Sharrad and Mr M Hickinbotham.
Over the latter months of 2005, Ms Poniatowska says that her work performance deteriorated due to the way in which she had been treated in relation to her complaints, and the change of attitude towards her by other employees. She alleges that her termination on 21 February 2006 was a consequence of the conduct of which she complains, and therefore that her employer should be responsible for it and for the consequences.
More significantly, she alleges that ESA, particularly through Mr M Hickinbotham and Ms Sharrad, set about a course of action leading to terminating her employment by fabricating, or taking advantage of (in a way which it would not otherwise have taken advantage of), deficiencies in her work performance. She alleges that the warning letters in November and December 2005, the first warning letter and the second warning letter and the third warning letter, and the suspension letter in February 2006 were part of that process. She complains that there was no foundation or no proper foundation for those warning letters. Her suspicion is confirmed, she claims, by a comment by Ms Sharrad in January 2006 that she would find something on Ms Poniatowska to have her terminated by the end of the month. She also complains that Ms Sharrad in January 2006 commented to her that, “had I known you were a single mother with two children, I would never have employed you”.
The factual allegations are vigorously disputed by each of the respondents, with some qualification. They present a series of complex issues upon which detailed factual findings will need to be made. It will then be necessary to consider the legal consequences of any findings adverse to the respondents or any of them.
Before doing so, it is helpful to understand the causes of action relied upon by Ms Poniatowska.
THE CAUSES OF ACTION
Ultimately, the causes of action were confined to claims of unlawful discrimination contrary to the HREOC Act and, more particularly in contravention of ss 14, 28B and 94 of the Sex Discrimination Act 1984 (Cth) (the SD Act), and for breach of a term of trust and confidence said to be implied in her contract of employment with ESA.
The starting point is the HREOC Act. Section 3 of the HREOC Act defines “unlawful” discrimination to include any acts, omissions or practices that are unlawful under Part II of the SD Act (which includes ss 14 and 28B) and conduct that is an offence under s 94 of the SD Act.
Part IIB of the HREOC Act deals with redress for unlawful discrimination. A complaint of unlawful discrimination must be dealt with by the President of HREOC (s 46PD). Section 46PH empowers the President to terminate a complaint on a number of grounds, including relevantly by s 46PH(1)(i) that the President is satisfied that there is no reasonable prospect of the matter being settled by conciliation. That is what happened here.
That enlivens the ability of a complainant to apply to the Court under s 46PO(1), as Ms Poniatowska has done.
Section 5 of the SD Act describes sex discrimination in the following terms:
(1)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the sex of the aggrieved person if, by reason of:
(a) the sex of the aggrieved person;
(b)a characteristic that appertains generally to persons of the sex of the aggrieved person; or
(c)a characteristic that is generally imputed to persons of the sex of the aggrieved person;
the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of the opposite sex.
(1A)To avoid doubt, breastfeeding (including the act of expressing milk) is a characteristic that appertains generally to women.
(2)For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the sex of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person.
(3)This section has effect subject to sections 7B and 7D.
It is not suggested that ss 7B or 7D have any application to the present circumstances.
Section 14(2) of the SD Act is the relevant provision of s 14 dealing with discrimination in employment. It provides:
It is unlawful for an employer to discriminate against an employee on the ground of the employee’s sex, marital status, pregnancy or potential pregnancy:
(a)in the terms or conditions of employment that the employer affords the employee;
(b)by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment;
(c) by dismissing the employee; or
(d) by subjecting the employee to any other detriment.
Section 28A of the SD Act defines sexual harassment in the following terms:
(1)For the purposes of this Division, a person sexually harasses another person (the person harassed) if:
(a)the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
(b)engages in other unwelcome conduct of a sexual nature in relation to the person harassed;
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.
(2)In this section:
conduct of a sexual nature includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.
Section 28B of the SD Act provides:
(1)It is unlawful for a person to sexually harass:
(a)an employee of the person; or
(b)a person who is seeking to become an employee of the person.
(2)It is unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer.
…
(6)It is unlawful for a workplace participant to sexually harass another workplace participant at a place that is a workplace of both of those persons.
(7)In this section:
place includes a ship, aircraft or vehicle.
workplace means a place at which a workplace participant works or otherwise carries out functions in connection with being a workplace participant.
workplace participant means any of the following:
(a)an employer or employee;
(b)a commission agent or contract worker;
(c)a partner in a partnership.
Section 94 dealing with victimisation, although expressed as establishing a criminal offence, is also conduct which may amount to unlawful discrimination as defined in s 3 of the HREOC Act. The final submissions on behalf of Ms Poniatowska did not specifically rely upon s 94 of the SD Act and it is not necessary in those circumstances to refer further to that provision.
I note that the delegate of the President of HREOC, when considering Ms Poniatowska’s complaint initially, also identified her complaint as including a complaint of unlawful discrimination by reason of discrimination on the ground of family responsibilities, within the meaning of s 7A of the SD Act, and contrary to s 14(3A) of the SD Act (although she did not tick that box in the relevant complaint form). The meaning of family responsibilities is defined in s 4A of the SD Act. As nothing was made of that allegation in the course of final submissions on Ms Poniatowska’s behalf in this matter, again it is not necessary to refer to that further.
There was no submission made on behalf of ESA or Homes, or any of the respondents, that the HREOC Act did not apply to them or that conduct made unlawful by the SD Act as unlawful discrimination would not apply to them. Section 9(11) of the SD Act specifies that the prescribed provisions of Pt II (which do not include s 94) have effect in relation to discrimination by a trading or financial corporation (which would include both ESA and Homes) and by a person in the course of that person’s duties or purported duties as an officer or employee of such a corporation. There are a series of “fall backs” as to the constitutional coverage of the SD Act then in sub-paragraphs (12)-(13) of s 9 of that Act. As there was no submission that any unlawful discrimination contrary to the SD Act, if it were established, would not attract liability in respect of each of the individual respondents to the extent of their involvement, it is not necessary to further consider that question. However, there is an issue as to whether the acts of each of the individual respondents (other than Mr A Hickinbotham and Mr M Hickinbotham) should be visited on the Hickinbotham Group.
Section 8 of the SD Act deals with multiple purposes for a particular act or acts. It provides:
A reference in subsection 5(1), 6(1) or 7(1) or section 7A to the doing of an act by reason of a particular matter includes a reference to the doing of such an act by reason of two or more matters that include the particular matter, whether or not the particular matter is the dominant or substantial reason for the doing of the act.
Finally, I note s 106 of the SD Act dealing with vicarious liability. It provides:
(1)Subject to subsection (2), where an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent:
(a)an act that would, if it were done by the person, be unlawful under Division 1 or 2 of Part II (whether or not the act done by the employee or agent is unlawful under Division 1 or 2 of Part II); or
(b)an act that is unlawful under Division 3 of Part II;
this Act applies in relation to that person as if that person had also done the act.
(2)Subsection (1) does not apply in relation to an act of a kind referred to in paragraph (1)(a) or (b) done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph.
Neither ESA nor Homes sought to invoke s 106(2).
In addition to the SD Act, Ms Poniatowska’s complaint to HREOC also raised racial discrimination contrary to the Racial Discrimination Act 1975 (Cth) (the RD Act). That complaint was based upon a comment allegedly made by Ms Sharrad in late August or in September 2005 that Ms Poniatowska did not deserve to work for the Hickinbotham Group because “she came from overseas”. In final submissions, senior counsel for Ms Poniatowska did not contend that a finding of unlawful discrimination by reason of racial discrimination should be made, but said that such conduct was part of the relevant background. I do not think that such conduct, even if it occurred, would usefully inform resolution of the principal allegations made by Ms Poniatowska, so I shall not separately address it. I have taken it into account in assessing the credit of Ms Poniatowska and Ms Sharrad in the following way. Ms Poniatowska’s accent indicates that she has some overseas connections, either directly or from her parents. It is inherently unlikely that that would not have been apparent to Ms Sharrad when the decision was made to employ Ms Poniatowska, so it is inherently unlikely that Ms Sharrad would later have made the comment attributed to her. Consequently, I think that this alleged communication is unlikely to have occurred as Ms Poniatowska described. I have taken that finding into account in assessing the weight I have given to her evidence.
The remaining cause of action is based upon the claim that there was an implied term of trust and confidence in the contract of employment. Ms Poniatowska asserts that her contract of employment contained a term implied by law that ESA and Homes would not, without reasonable and proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between them and Ms Poniatowska. The conduct referred to above is the conduct which is alleged to have breached that implied term. Furthermore, she contends, her suspension on 9 February 2006 was also in breach of that implied term. She alleges that as a consequence of breaches of that implied term, either alone or in conjunction with the alleged unlawful discrimination, she lost her employment and suffered loss and injury.
Ms Poniatowska claims variously through her causes of action and the conduct giving rise to them that she developed depression and has been unable to return to gainful employment, other than for a short period, since her employment with ESA was terminated on 21 February 2006. She claims to remain incapacitated for work for a significant period into the future. It will be necessary to refer to the medical evidence in some detail later in these reasons.
THE WITNESSES
To a significant extent, resolution of Ms Poniatowska’s claims will depend upon whether the conduct she variously describes occurred, or occurred in the way which she says it occurred. Some of it is acknowledged to have occurred, but a different picture or emphasis is given by other evidence. Some of it is directly denied. And each of the respondents vigorously disputes that any conduct on their part amounted to sex discrimination or sexual harassment.
Importantly, given the elapse of time between the six specific events of alleged sexual harassment (between April 2005 and September 2005), and the steps leading up to the termination of Ms Poniatowska’s employment with ESA (apparently commencing with the first warning letter of 18 November 2005), there is a significant dispute about whether her termination was in any way related to any actual or perceived sexual harassment she experienced. Tied in with that issue is the manner in which ESA, particularly through Mr M Hickinbotham and Ms Sharrad, addressed her concerns about her treatment.
Those general comments indicate the need, in the first place, to be careful in making findings of fact on the events explored in the evidence. They also indicate the need to carefully consider the extent to which the Court should place reliance on the evidence of witnesses.
The reliability of witnesses is always difficult to assess. Each witness sees events from his or her own perspective. Over time there is sometimes a degree of rationalisation to fit objective material (documents) as it emerges into the understanding of events. Some witnesses’ memories become refined by a strong belief in the rightness of their role, so that objectivity is lost to a degree.
In reaching my findings in relation to the allegations, I have, of course, had regard to the contemporaneous documentary material. I have not assumed it was all accurate, because in the case of the various warning letters there is a challenge to the motives of those who created them, or to the accuracy of the circumstances upon which they are said to have been based. Generally, independent contemporaneous business records I have accepted as reliable foundations for further fact finding.
Putting aside the medical evidence, which I will deal with separately and later, there were only six witnesses who were not parties to the proceeding: Philip Read, a building consultant who worked for the Hickinbotham Group until early 2005; Jeremy Cordeaux, a company director who attended the meeting on 21 February 2006 at which Ms Poniatowska was dismissed; Terence Wright, the Financial Controller of the Hickinbotham Group since 1998; Kelly Hopko, a building consultant still employed by the Hickinbotham Group; Mr Daminato, Homes’ Contracts Manager since 2004; and John Swan, a building consultant employed by ESA.
I shall make brief observations about their evidence first.
I accept Mr Read’s evidence. He worked as a building consultant for a little over three years. His evidence was given laconically and directly, and without apparent bias. It accorded with other evidence as to Homes’ procedures. It was largely background evidence about those procedures, and how building consultants dealt with them. As it happened, it also largely coincided with Ms Poniatowska’s evidence on those matters.
I accept Mr Cordeaux’s evidence was honest, but I did not find it of much help. That is no criticism of Mr Cordeaux. His role was a limited one. He attended with Ms Poniatowska the meeting on 21 February 2006 when her employment was terminated. He was not fully briefed about the events preceding that meeting, but took the role of endeavouring to encourage the Hickinbotham Group to retain her employment to their mutual benefit. The course of that meeting was not relevantly in dispute, although details of what was said and done then are in issue. Ms Poniatowska’s claim is that its outcome was a foregone conclusion; that Mr M Hickinbotham and the others present were really just going through the motions of apparently giving her a fair hearing. Mr Cordeaux’s evidence does not inform or help to inform my findings on that claim. I do not need to refer to his evidence further.
Mr Wright’s role was principally limited to investigating a complaint made about Ms Poniatowska’s dealings with a client of the Hickinbotham Group in relation to a property at Victor Harbour (the Pearson complaint). The complaint was made by undated handwritten letter; it has a receipt stamp dated 8 February 2006. He completed his investigation and reported to Mr M Hickinbotham of its outcome on 21 February 2006, at the termination meeting of that date which he attended. For the reasons given when considering the Pearson complaint, I do not accept that Mr Wright’s evidence is reliable in relation to the complaint or his handling of it. Indeed, my views on his evidence inform my findings about the reasons, or at least certain of the reasons, why Ms Poniatowska’s employment was terminated.
Mr Wright gave more general evidence that he was not aware of any of the allegations made by Ms Poniatowska about unlawful discrimination during her employment until well after she had been dismissed. I do not need to form a view about that particular evidence. However, for the reasons given when addressing the Pearson complaint, I find that Mr Wright was aware by 8 February 2006 that Mr M Hickinbotham wished to terminate her employment and that the results of his investigation into the Pearson complaint were expected to be adverse to Ms Poniatowska. I reject his evidence to the extent it suggested the contrary.
Mr Wright also gave evidence that there was a significant proportion of female office staff and female consultants and supervisors employed by the Hickinbotham Group. He said in his statement that the working environment is particularly supportive of women, and that he had never seen inappropriate sexual conduct or heard inappropriate sexual comments amongst those in the office, including consultants and supervisors. Nor did he see Ms Poniatowska treated differently during the period from about June or July 2005 compared to the earlier period of her employment. However, in his oral evidence he said that he had heard Ms Sharrad on occasions using sexually explicit language, generally in frustration. I do not think his evidence on those matters adds much to the picture of the work environment. Mr Wright said that he did not, in his job, deal regularly with building consultants although he was available to (and did) discuss particular issues with them. He did not routinely chat socially with them when they were in the office. I did not form the impression that Mr Wright would routinely have been exposed to the style of Ms Sharrad’s (or other consultants’) conversations whilst in the office.
Ms Hopko’s evidence was of a general nature. She has worked as a building consultant with Homes since February 2005, so she commenced about the same time as Ms Poniatowska. She was not involved directly in any of the particular conduct giving rise to Ms Poniatowska’s complaints, save that during 2005 she obviously had some contact with Ms Poniatowska whilst she was having contact (a deliberately neutral word) first with Mr Flynn and then with Mr Lotito.
Ms Hopko did not work at a display village at the same time as Ms Poniatowska. Her contact was confined to the Monday morning sales meetings at the head office, and the periodic Thursday morning staff training sessions, as well as some social contact. She described a training system for file preparation and presentation similar to that described by Ms Poniatowska, namely being assigned to a more experienced sales consultant who showed the process to her. In her case, it was Mr Flynn. Subsequently, some considerable time later, she developed and still has a personal relationship with Mr Flynn and they are now engaged to be married. She agreed, as indeed is self-evident, that the quality of the immediate training is dependent upon the preparedness and skills of the trainer consultant. She also confirmed that it was common for a contract proposal put forward by a building consultant for assessment and approval by Mr Daminato or others to be returned with requisitions. There were some examples of her files, requiring apparently extensive requisitions, including in August and December 2005. That also accorded with Mr Read’s evidence. She also confirmed, as Ms Poniatowska said, that sometimes building consultants put forward contract proposals which were incomplete because information was awaited from the client. That was done apparently to get in an approvals “queue”. Sometimes the additional information was received and included in the file before it was assessed, and sometimes the file came to be assessed and requisitions made before the information was received.
Ms Hopko also gave evidence of some circumstances which, as I understand it, were intended to demonstrate that Ms Poniatowska had at least overstated the significance to her of certain of the conduct she complained of.
At a general level, she said Ms Poniatowska was “very flirtatious” and conscious of her appearance, and wore (what I infer from Ms Hopko referring to it) inappropriate clothing: a “very tight black dress” and “skin tight jeans and mid-riff tops which exposed her stomach”. She said that such clothing was not worn on days that Ms Poniatowska would be working at a Homes display village.
Ms Hopko also gave evidence of a conversation concerning the accuracy of what Ms Poniatowska had put on her resumé about her marital status (she said she was married, rather than that she was divorced); about having invited Ms Poniatowska to her birthday drinks in June 2005, and getting no expression of concern when she also said that Mr Flynn and Mr Lotito had been invited; about a social conversation after a game of netball in about July 2005 when Ms Poniatowska discussed the fact that Mr Flynn had expressed an interest in catching up with her (Ms Poniatowska) without expressing any concern about his approaches, other than being worried about the accuracy of Mr Flynn’s claim to her that his marriage was not then a happy one; about a social drinks meeting at the Old Lion Hotel in about October 2005 when Ms Poniatowska knew in advance that Mr Flynn would also attend and she showed no apparent discomfort whilst he was there; about a conversation in late November 2005 when Ms Poniatowska said she was interested in catching up with Mr Flynn for coffee; about the December 2005 Hickinbotham Group Christmas party for consultants, including a bus tour and a meal in the Barossa Valley when Ms Poniatowska sat next to Mr Flynn both on the bus and at the meal; and about Ms Poniatowska telling her on a number of occasions that she thought Mr M Hickinbotham was attractive.
I address the significance of her evidence, and the weight to be attributed to it, when considering the various allegations made by Ms Poniatowska. It is convenient to deal with one part of her evidence at this point. I do not accept that Ms Poniatowska dressed in a way that was considered inappropriate or unsatisfactory from the employer’s point of view. Neither Mr M Hickinbotham nor Ms Sharrad said that. No oral or written comment was directed to her by the employer about that. It was not said about Ms Poniatowska’s style of dress by any other witness, although Mr Swan suggested that her style of dress was more suited to night outings. It is unclear why the respondents sought to adduce that particular evidence through Ms Hopko. If it was to suggest that Ms Poniatowska by her style of dress intended to invite sexual attentions from her co-workers, I do not make that finding for the reasons given.
Mr Daminato has been the Contracts Manager for Homes since 2004, and has worked for the company in all for some 15 years. He is responsible for reviewing all building contracts submitted by sales consultants. Until he has approved the proposed contract, it is not executed by Homes.
The file review process is quite a comprehensive one. The file is presented to him with a quotation form, a sketch plan of the house with modifications as requested to the standard plan, front and side elevation drawings, a site plan with site elevation and dimensions, and a copy of the building contract. The file should contain identical sets of documents for a draftsperson and for an engineer.
The file, when presented to Mr Daminato, has an outside cover sheet comprising a pro forma document to be completed. It also has an inside front sheet headed “File Preparation Checklist” which requires the building consultant to tick the various boxes to ensure the necessary material is included.
Mr Daminato then assesses the file to assess its “constructability”: whether the house will fit on the land; the topography and soil content; the construction practices; encumbrances and the sufficiency of the detail. He also assesses the practicality of the proposal, and whether Homes will accommodate the proposed modifications.
His evidence then recounted his dealings with Ms Poniatowska. They were confined to occasions when she sought his assistance about a particular issue, or when he requested her to discuss concerns about her files. He said he soon developed concerns about her files. I shall consider the significance of his evidence, and the weight to be attributed to it, when considering in particular the first warning letter and the suspension letter.
Mr Swan’s evidence was only peripheral. He is an experienced building consultant, having worked for Homes for about eight years. During 2005, he was mainly based in the head office. He gave his evidence carefully and presented as a thoughtful and balanced witness. I accept his evidence.
His duties included assisting building consultants, as well as responding to clients who first contacted the head office. During 2005, Ms Poniatowska spoke to him about once or twice a month to discuss particular problems with a file, seeking advice about how to address them. He did not suggest that her demands on his time or for his advice were inappropriate or were different from those of the other newer building consultants. He acted as a supporting referee for her, after the termination of her employment, with another building company. He was not consulted about giving Ms Poniatowska any of the three warning letters.
His evidence presents a different perspective to that of Mr Daminato and others about the quality of Ms Poniatowska’s file management. As I indicate below, it is the more significant because – despite the information available to Homes – there was no attempt to compare in any qualitative way the extent of the requisitions generated on Ms Poniatowska’s files with those of other new sales consultants, nor any attempt to make any structured comparison of the extent of recurrent flaws in Ms Poniatowska’s file management with that of other newer sales consultants. There are other features of the analysis of Ms Poniatowska’s files which I discuss below.
As noted above, Mr Swan’s evidence was that Ms Poniatowska dressed in a different style to other staff; he described it as more suitable for “a night out on the town”. He did not see the need to make any comment on her dress style when providing a reference for her. He was unaware of any allegations of sexual harassment of Ms Poniatowska during the period of her employment, or of any inappropriate behaviour by any Homes employees.
I turn to some observations about the evidence of the parties.
The evidence of each of the principal witnesses is the subject of criticism, and of submissions that that particular witness was not credible or was unreliable. It will be necessary to deal with the individual allegations, and the reliability of each of the witnesses whose evidence touched upon those allegations, in due course. However, it is desirable to make some general observation about each of the principal witnesses at this point.
The evidence of Ms Poniatowska contrasted sharply with that of almost every other principal witness. Senior counsel for Ms Poniatowska submitted that she should be accepted as a generally credible witness, and should be preferred against the evidence of Mr M Hickinbotham, Ms Sharrad, Mr Daminato and Mr Lotito where their respective evidence conflicted. Counsel for the respondents (other than Mr Lotito), in a very detailed submission, identified 64 “issues” concerning the credibility of Ms Poniatowska. He contended that, except in respect of certain parts of the evidence of Mr Lotito, I should prefer in each instance the evidence of the witnesses called by the respondents where it contradicted any evidence of Ms Poniatowska.
I have carefully considered all the respective submissions. I will address certain of the matters specifically mentioned in the submissions made on behalf of the respondents (other than Mr Lotito) when addressing individual allegations. I have come to the view that I should, as I do, accept some of the evidence of Ms Poniatowska and some of the evidence of Mr M Hickinbotham, Ms Sharrad and Mr Daminato. It is convenient to record my general assessment of those principal witnesses at this point. As I noted, there was a conflict of evidence to a degree, not only about the specific incidents alleged by Ms Poniatowska, but also on the part of the Hickinbotham Group and its senior staff about its work systems and processes and about the comparative quality of its building consultants in their file preparation and presentation.
In my view, Ms Poniatowska was an honest witness, endeavouring to tell the Court as accurately as she could what had occurred. She was direct, and apparently spontaneous in her answers. She was asked some questions to which she responded straightforwardly that she did not know the answers, although she might easily have given a positive response. Where she was confronted with particular assertions as to the accuracy or inaccuracy of certain events, or it was suggested to her that she was deliberately misleading about certain events, she responded in a convincing way. Obviously, she feels strongly that her treatment in the course of her employment with the Hickinbotham Group was inappropriate, and that the termination of her employment was unjustified. I think that may have coloured her assessment of the significance of, or reasons for, certain of the events addressed in the evidence. There is a tendency in all of us to put past events in a perspective which fits with our own beliefs, but there is an undisputed core of fact underlying many of her allegations, and a body of evidence upon which she could, for example, rationally claim that the reasons given for her termination and for the three warnings she was given were not the real reasons for her termination or for those warnings. In some incidental respects, as I have noted, her evidence accords with the evidence of Mr Read and Mr Swan, and indeed is generally in accordance with the evidence of Mr Lotito (other than in relation to the particular allegations she has made against him). Where her evidence seeks to attribute motive to others by inference, whilst I accept her genuineness, I do not place any real weight on that part of her evidence. It is necessary to determine motive upon the whole of the facts as I have found them, unencumbered by her own attribution of motive to others. It is convenient to note at this point that I do not regard certain communications with Mr M Hickinbotham which indicate an appreciation for his support of her (in particular an email of 30 September 2005 and a Christmas card of December 2005) as detracting in any significant way from the specific findings referred to below. Such communications, in the overall context, are more likely to have been an endeavour to secure his empathy and support in the position she then thought she was in.
I have reached a similar assessment about the evidence of Mr M Hickinbotham. He is clearly an experienced and competent managing director of the Hickinbotham Group. He gave his evidence in a generally straightforward way. As with Ms Poniatowska, I thought that hindsight had led him in some respects to present a more favourable picture of certain events than was in fact the case. I suspect his loyalty to his senior staff, in particular Ms Sharrad, led him not to pay as much attention to the particular complaints of Ms Poniatowska, or her requests for the opportunity to discuss matters with him, as were warranted. That in turn has led him to have adopted an incomplete or insufficient view about the nature and extent of the conduct of which she was complaining. There were also a number of occasions when I considered that his answers were apparently ritual and rigid, rather than as responsive as might have been expected. Again, that may be because he was not as involved in certain of the relevant events as he now says he was, so he was to some degree unconsciously reconstructing those events in a more favourable way than was the fact. Also, at a few points in his evidence, I think his demeanour exhibited a very defensive posture, suggesting to me that he was trying to rationalise the events into a template of proper and responsive behaviour by himself and by the Hickinbotham Group in a rather contrived way. In particular, I refer to the investigation of the Pearson complaint, and its significance to the termination of Ms Poniatowska, together with more generally the reasons for her termination. I address that in detail below. There are some other features of his evidence which affected my assessment of his reliability as a witness on particular matters which I have mentioned in the course of these reasons. Again, therefore, whilst I accept him as a generally truthful witness, I have not accepted everything that he has said. I have indicated below what parts of his evidence I have not accepted on significant matters, including the one very significant respect as to the reasons for the termination of Ms Poniatowska’s employment.
I did not find Ms Sharrad a consistently impressive witness. My overall assessment was that she presented as favourable a picture as possible concerning the actions of herself and of Homes consistent with that which the objective data, as she understood it, would allow. On occasions, that approach was exposed as simply procrastination. At one point in her evidence, after a break, her style of answering questions changed quite significantly from an assertive one to one where she simply sought to say as little as possible, and there were parts of her evidence which, I thought, did not line up with commonsense. In making that observation, I have taken into account certain personal and private issues she has had to deal with in the course of her evidence. Whether she was driven by a sense of loyalty to the Hickinbotham Group in the content of her evidence overall is unclear. It probably does not matter. One submission to support her reliability was that she had answered questions adverse to her interests directly; reference was made in particular to the June 2005 allegations. I have taken that submission into account, but it must be balanced against the acknowledgment of an inappropriate comment made by Ms Sharrad contained in a letter of 9 August 2005 from Mr M Hickinbotham to Ms Poniatowska referred to below.
Overall, in a number of respects, I found the evidence of Ms Sharrad unsatisfactory. I have not placed much weight upon it, where it is contradicted by other apparently cogent evidence. Where I have made a significant finding of fact inconsistent with her evidence, I have sought to explain the reasons for that finding. I also drew from Ms Sharrad’s evidence a picture of the robustness of the work environment, reflected in my findings below.
The written contention on behalf of Ms Poniatowska did not separately assert that Mr A Hickinbotham or Mr Flynn were unreliable witnesses. Their respective roles were relatively limited in the overall picture. I shall address their evidence in the course of considering the allegations concerning each of them.
Mr Lotito’s evidence dealt with both general matters about the work systems and the work environment, and about the Lotito allegations. As to the former, his evidence accorded generally with that of Ms Poniatowska and some others, and I accept it. It reinforces my findings below on those topics, in particular about the robustness of the work environment. As to the latter, for the reasons given when considering the Lotito allegations, I do not accept it.
As I noted above, that leaves the witnesses going solely to the issue of damages. I shall deal with them separately, after considering whether the claim or claims of Ms Poniatowska should succeed on the issue of liability.
THE WORK SYSTEMS AND THE WORK ENVIRONMENT
It is clear that the business systems of Homes were not perfect. That is not of itself of special significance. Nor, I suspect, is it untypical of many similar workplaces. Progressively, workplaces have introduced policies to avoid discrimination in the workplace, for making complaints about the behaviour of co-workers, and for dealing with such complaints. Homes had not done so by 2005 or early 2006. Nor is there any evidence that, informally, there were systems or processes in place for addressing such matters.
More generally, it is also clear that the system for the training of newly appointed building consultants was somewhat haphazard. That extends from any formal induction training, including awareness of any policies and procedures, to technical training. The contract of employment for each building consultant was a letter of offer countersigned by the new building consultant. It required the new employee to sign the Code of Conduct for Building Consultants. No building consultant who gave evidence proffered any real awareness of its contents, and the evidence does not suggest that its contents were the subject of specific instruction.
Ms Sharrad as the Team Leader was generally responsible for the training of newly appointed building consultants. Her practice was to assign a new building consultant to one with some experience, so that the experienced consultant would impart the necessary learning. Obviously that depended on the commitment and availability of the more experienced consultant; the evidence shows that varied as between building consultants. In the case of Ms Poniatowska, she was assigned to Ms Sharrad for supervision and instruction. It is common ground that, due to other duties, Ms Sharrad had little time to fulfil that role so Ms Poniatowska had less training than others through that structure. Ms Sharrad said that Ms Poniatowska was first assigned to another building consultant to be trained, but that did not satisfactorily occur. After it became apparent that Ms Sharrad could not do so, she assigned Mr Read to train Ms Poniatowska. He showed her around the display villages and gave her a “brief rundown about how files should be prepared”. He had resigned by that time, but undertook that form of training over a period of a few weeks. Mr Read said it took him some six to twelve months to master the skill of putting a file together properly. Ms Poniatowska, like others, sought assistance from other building consultants while she was at a display village. In addition, there was as noted a regular Monday morning meeting of all building consultants at the head office. They were each interviewed separately by Ms Sharrad to address their progress; sometimes Mr A Hickinbotham or Mr M Hickinbotham also participated. There is nothing to indicate that such sessions were structured in a particular way, or that there was any checklist worked through to assess the quality of a consultant’s performance. I find that the main focus of those meetings was to discuss sales progress, and to give ad hoc advice as to how potential sales might be progressed, rather than to discuss or give instructions about more technical matters such as file preparation and presentation.
In addition, the Monday morning meetings were a time when building consultants could individually work on files, discuss queries with others, seek advice either formally or informally from their peers, and generally discuss matters. I find that those meetings were in a robust environment. By that I mean that not infrequently the language was coarse, sometimes vulgar, and sometimes sexually explicit. I do not need to consider whether it was atypical of other similarly sized offices, whether in the building industry or in other industries. There is nothing to suggest that that quality of communication was disapproved of, or that (apart from Ms Poniatowska) it caused discomfort to building consultants. In particular, there is nothing to indicate that those using that style of language were either asked not to do so or were reprimanded for having done so. In fact, I find that Ms Sharrad was amongst those who participated in that style of conversation. There was, therefore, no natural inhibitant to its use. I will use the word “robust” to describe that environment.
It is in that general work environment, including not infrequent sexually explicit language and references, that in my view Ms Sharrad did not respond in an appropriate way when Ms Poniatowska complained to her of having received the email communications from Mr Flynn referred to below, and responded in an unsupportive and dismissive way (as I find below that she did) when Ms Poniatowska reported those communications to her (the May 2005 allegations). It is also in that context that Ms Sharrad could consider it appropriate to have made the comment about Mr Lotito which she acknowledges (the June 2005 allegations). It is further in that context that it is, in my view, appropriate to determine and assess the quality of the response of Ms Sharrad and Homes to the complaints of Ms Poniatowska from time to time and the way in which Ms Poniatowska then reacted to the handling of her complaints or reports of inappropriate conduct.
I return to the system of instruction of new building consultants. On Thursday mornings, sometimes but not regularly, there was a training session for building consultants at which all must attend. There is no clear evidence as to the content of any one or more of those training sessions. That is perhaps a measure of the lack of any structured development program for building consultants by Homes. No record was produced showing their dates or the presenters or the topics addressed. I suspect that those training sessions, when conducted, were intended to be informative to building consultants of processes they might find to their benefit in selling houses or house and land packages on behalf of Homes. There is a document entitled “Construction Services Australia Training Guide” which Ms Sharrad said, and I accept, was used by her as a basis for topics discussed on some of the Thursday morning training sessions. There are nine topics listed, including “Preparing a Quote”; “Siting a House on a Block/Site Plans”; and “Preparing a File”. Ms Sharrad spoke on some of those topics, and Mr Daminato on “Preparing a File”. The detailed content of particular presentations was up to the presenter. Other topics relate to knowledge of the product, qualifying a buyer, including as to finance, sourcing a block of land (apparently not applicable to the Hickinbotham Group), closing the sale, and generally representing the Hickinbotham Group.
I find that there was no system for the routine and formal assessment of the work of building consultants. There is no evidence adduced on behalf of the respondents (other than Mr Daminato) to indicate to the contrary. Clearly, if there were any such documentary evidence available, it would have been produced. I infer that it was not maintained. In particular, there is no evidence of any record of Homes routinely assessing the quality of work of building consultants, other than broadly being aware of the sales they had effected. There is no evidence of any record suggesting that there was any routine analysis of the quality of their file preparation or presentation, or any comparative analysis of it. There is no evidence of any record on any building consultant’s file of particular assessment of their file preparation or presentation, or of any discussions with them on such matters. There is nothing to suggest that Ms Sharrad, as the person in charge of the building consultants, noted on each personnel file the topics discussed at the weekly Monday meeting or indeed made any note of those discussions. Nor is there any record to suggest that Mr Daminato kept any record of any particular discussion he had held with any building consultant, or caused any record of any such discussion to be placed on a personnel file or elsewhere. He caused the written requisitions to be entered on a general computer record, but no evidence suggested that was then used as a tool to control the quality of file preparation and presentation of building consultants generally, or used as a basis for selecting (for example) Thursday training topics.
I order ESA to pay to Ms Poniatowska her costs of the application. I will give leave to Ms Poniatowska or to ESA to apply for an order that the compensation so ordered, or some part of it, be paid by some one or more of the other respondents. I will also give leave to ESA to apply to have some part of the costs ordered against it to be paid by some one or more of the other respondents.
I certify that the preceding three hundred and sixty-four (364) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate:
Dated: 23 June 2009
Counsel for the Applicant: P Heywood Smith QC with A Pridmore Solicitor for the Applicant: Duncan Basheer Hannon Counsel for the First to Fourth and Sixth to Seventh Respondents: A Gotting Solicitor for the First to Fourth and Sixth to Seventh Respondents: EMA Legal Counsel for the Fifth Respondent: The fifth respondent appeared in person Date of Hearing: 16, 17, 18, 19, 20 June 2008
1, 2, 3, 4 July 2008
5, 6, 7, 8 August 2008
1, 2 September 2008Date of Judgment: 23 June 2009
34
0
0