Ramstrom v Baldino - [2013] SAEOT 14

EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
RAMSTROM v BALDINO
[2013] SAEOT 14
Judgment of Her Honour Judge Cole, Member Ms H Jasinski and Member Mr D Shetliffe
20 December 2013
ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS
Sexual harassment - complaints denied by the respondent. Complainant has not proven conduct by the respondent which constitutes sexual harassment under the Equal Opportunity Act 1984 on the balance of probabilities. Complaint is refused.
Equal Opportunity Act 1984 (SA), referred to.
Briginshaw v Briginshaw (1938) 60 CLR 336, considered.

RAMSTROM v BALDINO
[2013] SAEOT 14

On 23 September 2010, Ms Ramstrom made a complaint, pursuant to the Equal Opportunity Act 1984 (“the Act”), to the Commissioner for Equal Opportunity (“the Commissioner”), in which she alleged that she had been sexually harassed by Mr Baldino, in the workplace, from June to September 2010. Ms Ramstrom is a magistrates’ clerk, employed by the Courts Administration Authority. Mr Baldino was a magistrate in 2010 (and for many years prior to 2010), but he has subsequently retired.
The relevant provisions of the Act
The Act provides, in s 87(6a):
It is unlawful for a judicial officer to subject to sexual harassment a non-judicial officer, or a member of the staff, of a court of which the judicial officer is a member.
The Act provides, in s 87(9):
For the purposes of this section –
(a)     a person sexually harasses another (the person harassed) if –
(i)    the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
(ii)     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; and
(b)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.
The Act, in Part 8, sets out the procedure for the making of a complaint to the Commissioner. Part 8 of the Act also sets out the circumstances in which the Commissioner must refer a matter to the Tribunal.
Referral of Ms Ramstrom’s complaint to the Tribunal
By notice pursuant to s 95B of the Act, dated 15 February 2012, the Commissioner referred Ms Ramstrom’s complaint to the Tribunal. The notice of referral said, in relation to the complaint against Mr Baldino:
PARTICULARS OF THE COMPLAINT
That on or about June to September 2010, …Mr Joseph Baldino …sexually harassed the said Mrs Ramstrom, contrary to the Equal Opportunity Act 1984 (SA).
It is the complaint lodged by Ms Ramstrom with the Commissioner which is before us. The further and better particulars provided do not, and cannot, change the subject matter of the complaint.
Onus of Proof
Ms Ramstrom bears the onus of proof of her allegations against Mr Baldino. The standard of proof applicable is proof on the balance of probabilities. The allegations are allegations of sexual harassment as defined by the Act, and, having regard to the nature of the allegations, it is appropriate to apply the Briginshaw standard of proof.[1] The Briginshaw standard simply requires that we apply “much care and caution” before finding that an allegation is proven on the balance of probabilities.
[1] Briginshaw v Briginshaw (1938) 60 CLR 336
The Hearing
In the complainant’s case, evidence was given by Ms Ramstrom, Dr Pincombe, a psychiatrist, Mr Nathan Ramstrom, who is Ms Ramstrom’s husband, Ms Duffield, a sheriff’s officer, and Ms Roche, an employee of the Courts Administration Authority.
In the respondent’s case, evidence was given by Mr Baldino, Ms Carter, the manager of the Magistrates’ Clerks branch of the Magistrates Court, Ms Wood, a Magistrates’ Clerk and Ms Cresp, a Magistrates Clerk.
Background
Ms Ramstrom gave evidence that she began employment as a magistrate’s clerk in 2007, and was assigned to work with Mr Baldino, beginning in September 2008.[2] Mr Baldino’s evidence, based on his diary entry[3] was that Ms Ramstrom began to work for him on 4 July 2008.
[2] Transcript p 44.
[3] Exhibit R15, transcript p 706.
Evidence was led by both parties about the course of Ms Ramstrom’s employment as a magistrate’s clerk. In particular, evidence was led about a circuit to Port Lincoln which Ms Ramstrom went on with Mr Baldino in November 2008, Ms Ramstrom’s work injury claims and the nature of Ms Ramstrom’s relationship with Mr Baldino and other members of staff of the Courts Administration Authority generally. This evidence was led on the basis that it provided context to the specific allegations of sexual harassment made by Ms Ramstrom against Mr Baldino in her complaint, which is confined to the period of June to September 2010. The Act, in s 87(9), in describing what constitutes sexual harassment, makes it clear that “all the circumstances” of the conduct alleged are relevant to the assessment of whether that conduct constitutes sexual harassment for the purposes of the Act. We will deal with this evidence before we deal with the evidence in relation to the specific allegations of sexual harassment from June to September 2010.
The Port Lincoln Circuit November 2008
The Magistrates Court visits a number of larger country towns on a regular basis to hear matters which have arisen in the region. Mr Baldino was assigned to undertake the Port Lincoln circuit of the Magistrates Court to take place in November 2008. Ms Ramstrom, who was, by that time, assigned to be Mr Baldino’s clerk, accompanied him on the circuit. Mr Baldino and Ms Ramstrom flew to Port Lincoln. Accounts of the events of the circuit differ. We will set out the differing accounts of the circuit and its immediate aftermath and then make findings of fact.
Monday 10 November 2008
Ms Ramstrom gave evidence that she and Mr Baldino arrived at the Port Lincoln Hotel at about 9am on Monday 10 November. She said that, upon arrival, Mr Baldino was complaining:[4]
About not having a spa in his room, as he always has a spa, and he didn’t like the balcony because it blocked his view, and he went down to reception to complain.
[4] Transcript p 46-47.
Mr Baldino gave evidence that he and Ms Ramstrom arrived in Port Lincoln at about 10am, and that they checked in to the Port Lincoln Hotel, but did not gain access to their rooms at that time. Instead, Mr Baldino said, they went straight to court. Mr Baldino’s evidence was that he made no comment about a spa or a balcony.[5]
[5] Transcript p 710.
An affidavit of Mr McInnes, General Manager of the Hurley Hotel Group, which owns the Port Lincoln Hotel, was tendered in the respondent’s case by consent.[6] Mr McInnes said that the Port Lincoln Hotel records show that Mr Baldino checked into the Hotel at 10.24am on Monday 10 November 2008. Mr McInnes said that the Hotel’s usual check in time is 2pm, and that the Hotel’s policy is that guests would not usually be given access to their rooms prior to 2pm, although it is sometimes permitted if the room is ready. The Hotel has no record of when Mr Baldino gained access to his room on 10 November. It was Mr McInnes’ evidence that the only spas in the Hotel are in the Luxury Ocean View Balcony Suites and the Deluxe Spa Suites. There is no communal spa for Hotel guests. There is a swimming pool.
[6] Exhibit R36.
Ms Ramstrom gave evidence that Mr Baldino asked her to join him for lunch on the Monday of the circuit. She said that she refused because she had brought her own food. At all material times, Ms Ramstrom was an organic vegan. She said that Mr Baldino said “No pressure, but most of my clerks usually come with me to lunch”. Ms Ramstrom said that she went to lunch with Mr Baldino but brought her own sandwich.[7]
[7] Transcript p 48.
Mr Baldino gave evidence that he drove himself to lunch, alone, and then went to the hotel and unpacked. He denied having lunch with Ms Ramstrom. He said that after he had unpacked, he returned to Court.[8]
[8] Transcript p 711.
It was Ms Ramstrom’s evidence that Mr Baldino asked her to have dinner with him on Monday evening. She told him that she had brought her own food. Ms Ramstrom’s evidence was that Mr Baldino said “No pressure, no pressure, but most of my clerks come out for dinner with me”. Ms Ramstrom said that Mr Baldino offered her a lift back to the hotel from Court, and that on the way back they drove through a bottle shop. She said that Mr Baldino offered to buy her wine, and she said that she only drank bourbon, but that he bought white wine for her anyway, saying that bourbon was too expensive.[9]
[9] Transcript p 48.
Mr Baldino’s evidence was that he asked Ms Ramstrom what she wanted to do for dinner, and she said that she had brought dinner from home for herself for the whole week. Mr Baldino said that he then invited her to come to his room for drinks after dinner. He denied that he had driven Ms Ramstrom back to the hotel from Court on the first day, and said that he had gone to the supermarket and the bottle shop by himself. He denied that Ms Ramstrom had told him that she only drinks spirits.[10] Mr Baldino said that Ms Ramstrom chose to remain in Court endorsing files at the end of the sitting on Monday 10 November. He offered to return in the car to collect her, but she chose to walk the short distance back to the hotel.[11]
[10] Transcript p 711.
[11] Transcript p 714.
It was Mr Baldino’s evidence that, when on circuit, it was usual for magistrates and clerks to have dinner together. Ms Wood, who has been a magistrate’s clerk for nearly 15 years, gave evidence that she had gone on numerous circuits with various magistrates. She had been to Port Lincoln and to Berri with Mr Baldino. Ms Wood said:
Whenever we went on circuit, we would have dinner and wine together in the evening. It made sense because we were both away from home, we both had to have dinner.[12]
[12] Transcript p 1027.
Ms Wood said that when she was in Berri with Mr Baldino, they would go for a walk together every morning and have dinner and a drink after work, sometimes with other court staff.[13]
[13] Transcript p 1028.
Ms Cresp gave evidence. She has been a magistrate’s clerk for seven years and has been on numerous circuits with numerous magistrates. Ms Cresp’s evidence was that, when on circuit, she would often have drinks in the magistrate’s hotel room and go out to dinner with the magistrate, whether male or female.[14]
[14] Transcript p 1037.
Ms Ramstrom’s evidence was that she had drinks in Mr Baldino’s room before dinner.[15] She said that she then ate her own food in her room and telephoned her husband. Then, she said, she went downstairs in the hotel to the bar and met Mr Baldino, who was talking to an Aboriginal Justice Officer (“AJO”). She said that Mr Baldino bought her more wine in the bar. In cross examination, Ms Ramstrom said that Mr Baldino ordered “a platter” in the bar, for his dinner.[16]
[15] Transcript p 50.
[16] Transcript p 411.
Ms Ramstrom said, in evidence, that when she was in Mr Baldino’s room before dinner on Monday 10 November, Mr Baldino complained about not having a spa in his room, saying that his clerks “usually go in the spa with me”.[17] When she said that she didn’t bring her bathers, she said Mr Baldino said that she could have gone in “in her bra and knickers”.[18] Ms Ramstrom said that Mr Baldino said that she could go swimming in the pool downstairs in her bra and knickers, and that he would watch her swim.[19] She said that his comments caused her to feel “shocked and uncomfortable and uneasy and scared”.[20] Ms Ramstrom said that Mr Baldino said that there was usually a dinner on the Thursday of a circuit involving the lawyers, but that “he wasn’t going to go and I wasn’t to go and tell them that it’s cancelled”.[21]
[17] Transcript p 51.
[18] Transcript p 51.
[19] Transcript p 51.
[20] Transcript p 51.
[21] Transcript p 52.
Ms Ramstrom said that, after Mr Baldino had eaten dinner in the bar downstairs, he insisted that she return to his room with him, because the white wine would go off by tomorrow.[22] She said that he said “No pressure, no pressure, come to my room just for one last drink, just one.” Ms Ramstrom said that she went to his room and he poured her wine and said “If you get pissed tonight, you can just sleep on one of the beds”. She said she felt scared and nervous, so she skulled her glass of wine and left. She said that he was guiding her with his hand at her back.[23] She said that when she got back to her room she began vomiting, shaking and crying.
[22] Transcript p 55.
[23] Transcript p 56.
Mr Baldino said that he invited Ms Ramstrom to have drinks in his room only once on Monday night, after dinner, telling her, when he invited her, that she was under no obligation to accept. He said that she showed no reluctance.[24] He said that she arrived at about 7:30 and left at about 10:30. He had bought orange juice, mineral water and wine. He offered her the choice of what he had, and she chose white wine.[25] Mr Baldino said that during their conversation on Monday night, he described the hotel’s facilities to Ms Ramstrom on Monday night, saying that it had a swimming pool, a gym, a restaurant and a bar. He explained the types of suites, including mentioning that there were luxury suites with spa baths. Mr Baldino said, in evidence, that he did not push wine on Ms Ramstrom nor guide her with his hand in her back.[26] Mr Baldino denied saying that Ms Ramstrom could have had a spa with him, or that he would watch her swim in the pool. Mr Baldino said that Ms Ramstrom commented, when he told her about the pool, that she had not known about it and didn’t bring her bathers, so he said that if she really wanted to swim, she could wear several pairs of underwear and a loose top like a t-shirt.[27] With respect to the Thursday night dinner, Mr Baldino said that he told Ms Ramstrom to apologise for him, as he had a judgment to write. When Ms Ramstrom said that she would not go either, Mr Baldino’s evidence was that he encouraged her to go and meet court staff and others.[28] Mr Baldino denied saying that Ms Ramstrom could sleep on one of the beds in his room.[29]
[24] Transcript p 811.
[25] Transcript p 52.
[26] Transcript p 718.
[27] Transcript p 716.
[28] Transcript p 718.
[29] Transcript p 814.
Mr Baldino said that Ms Ramstrom seemed to him to be perfectly normal during drinks on Monday night.[30]
[30] Transcript p 719.
Ms Heidi Roche, a Courts Administration Authority employee and a former magistrate’s clerk, gave evidence in the complainant’s case. Ms Roche related conversations that she said that Ms Ramstrom had had with her in relation to the Port Lincoln circuit. Ms Roche said that she received telephone calls from Ms Ramstrom during the circuit, including on Monday or Tuesday evening. Ms Roche said that Ms Ramstrom complained that Mr Baldino offered her wine, though she doesn’t drink wine, and had touched her on the arm which made her feel uncomfortable. She said that Ms Ramstrom had told her that Mr Baldino had wanted to have a spa. That “he wasn’t impressed that there wasn’t a spa in their room – in his room or her room – but that they could go downstairs and have a spa”. The following exchange took place with Ms Roche in cross examination:[31]
Q     Nothing about talk of a swimming pool downstairs.
A     Not that I recall. I specifically recall reference to the spa.
Q     Do you know if there is any spa downstairs at the Port Lincoln Hotel.
A     No, I don’t. I don’t know.
[31] Transcript p 692-693.
Ms Roche said that Ms Ramstrom had told her that Mr Baldino had suggested that she could go into the spa in her bra and knickers.[32] Ms Roche said that Ms Ramstrom had asked her, as someone experienced with circuits, if she had to go to dinner with the magistrate or not, and Ms Roche said she had told her that she could choose to go to dinner or not, as she wished. Ms Roche said that, in a later telephone call to her that week, Ms Ramstrom had said that Mr Baldino did not want to go to the Court dinner, but just wanted to have dinner with her.[33]
[32] Transcript p 655.
[33] Transcript p 656.
Ms Cresp said that Ms Ramstrom had told her that Mr Baldino invited her to have a spa with him, and that he pressured her to drink wine on the Port Lincoln circuit.
Mr Nathan Ramstrom’s evidence was that Ms Ramstrom told him that Mr Baldino was upset not to have a spa in his suite, and that he told her that he usually has a spa with his clerks, and that he suggested that she could go into the swimming pool in her bra and knickers.[34]
[34] Transcript p 572.
Tuesday 11 November 2008
In relation to Tuesday 11 November 2008, Ms Ramstrom gave evidence that Mr Baldino asked her to have lunch with him, that she initially refused, but then “felt pressured” and said yes.[35] Ms Ramstrom said that, at lunch, Mr Baldino said:
Don’t think I haven’t noticed you, you’ve got your tongue pierced. Is that to pleasure your husband?
[35] Transcript p 58.
Ms Ramstrom said she replied “That’s disgusting”.[36]
[36] Transcript p 58.
Ms Ramstrom gave evidence that, after Court on Tuesday, Mr Baldino asked her to go to dinner with him, but that she refused. She said that he said “I can’t believe I’ve got to go to dinner by myself” and slammed the door. She said that was the last she saw of him on Tuesday.[37]
[37] Transcript p 59-60 and 446.
Mr Baldino gave evidence that, on the Tuesday, he told Ms Ramstrom that he was planning to go to Lincoln Cove for lunch, and invited her to join him. She agreed, saying that she had never been there before. Mr Baldino said that, at the lunch, he commented that his lunch looked as if someone had “spewed” on it.[38] Mr Baldino said that he was referring to the sauces, oils, vinegar and other things with which his steak sandwich was splattered.[39]
[38] Transcript p 719.
[39] Transcript p 841.
Mr Baldino denied that he had a conversation with Ms Ramstrom about her tongue piercing at lunch on Tuesday 11 November 2008. He said that earlier, in chambers, in Adelaide, Ms Ramstrom noticed him notice her tongue piercing and that she said to him “That’s the only place I’ve got one”. [40]
[40] Transcript p 768.
Mr Baldino gave evidence that he accepted Ms Ramstrom’s refusal of dinner on Tuesday 11 November 2008, and asked her to join him for drinks after dinner in his room.[41] Mr Baldino said that she did join him in his room after dinner and that they discussed a soccer game which was to be televised the following night, and that Mr Baldino suggested that they watch it on the large screen in the Hotel bar.[42] Mr Baldino gave evidence that he and Ms Ramstrom talked about work, friends, travel, food and gardening, and had a pleasant time.[43] He said she left his room at about 10.30pm.[44]
[41] Transcript p 823 and 720.
[42] Transcript p 721.
[43] Transcript p 827.
[44] Transcript p 721.
Wednesday 12 November 2008
Ms Ramstrom gave evidence that, on Wednesday 12 November 2008, the court was busy, so there was only a 20 minute lunch break. She elected to go to a nearby organic café for lunch, and Mr Baldino joined her.[45] Mr Baldino agreed with that account.[46]
[45] Transcript p 61.
[46] Transcript p 450.
As to the evening of Wednesday 12 November 2008, Ms Ramstrom gave evidence that Mr Baldino wished to watch the soccer in his room with her, drinking wine, whilst she wished to watch it on the big screen in the bar. She said that Mr Baldino had dinner before the game. Her evidence was a little confused, but she seemed to indicate that Mr Baldino said that it looked as if the chef had “jerked off” on his salad, and that he made “a masturbation move with his hand” as he said this. Ms Ramstrom said that he was indicating the mayonnaise on his salad.[47]
[47] Transcript p 63-64.

Mr Baldino’s evidence was that he never eats mayonnaise and that he never made reference to “jerking off” or made a “masturbation move” with his hand. Mr Baldino said that he had dinner before he saw Ms Ramstrom on Wednesday night, and that he first saw her at 7:30 at his hotel suite, when they met to go downstairs together to watch the soccer in the bar. He said that the telecast in the bar was, however, mute, so he suggested that they go to his room to watch it with sound, and Ms Ramstrom agreed.[48] However, the television in his room had distorted sound and vision, so, after about five or six minutes, they returned to the bar.
[48] Transcript p 722.
Ms Ramstrom’s evidence was that once they discovered that there was no sound on the telecast in the bar, Mr Baldino insisted that they go to his room. However, when they found that there was no volume on his television, they returned to the bar.[49] Ms Ramstrom said that they joined an Aboriginal Justice Officer (“AJO”) in the bar, though Mr Baldino tried to discourage her from doing so. Ms Ramstrom gave evidence that, during the game, Mr Baldino whispered to her;
I thought you would have got on the table, taken your red top off and swung it around.
[49] Transcript p 65.
In cross examination of Ms Ramstrom, the following exchange took place in relation to that alleged comment:[50]
[50] Transcript p 398-399.
QAnd you, I think, assert, don’t you, that this was said that [sic] when one of the Adelaide United players had scored a goal, is that right.
AYes.
QAnd what was the score at the end of the game.
AI don’t recall now.
QWell, didn’t Adelaide United lose 2-0.
AI don’t recall.
QThey didn’t score a goal in terms of that match.
ANo, well, I don’t recall. I don’t recall why he would say that, either.
Also in cross examination, Ms Ramstrom agreed that, when watching the soccer on television from time to time, she had seen supporters take their tops off and swing them around when Adelaide United scored a goal.[51]
[51] Transcript p 400.
Mr Baldino said that the AJO was not with him and Ms Ramstrom while they watched the soccer in the bar, but they saw him later in the poker machine room.[52]
[52] Transcript p 830.
The following exchange took place with Mr Baldino during cross-examination:[53]
[53] Transcript p 723.
QDuring the course of the game or watching the game, I should say, did you make any comment about what Adelaide United supporters do.
AI said to her whether she was one – like one of the supporters that swung their tops around when attending a game.
QAnd why did you say that.
AShe had told me that she was an ardent supporter. She went to the games and it was a general conversation in the course of, or in the context of watching a soccer game.
QAnd do you know what the score was in that game.
AAdelaide City lost, they didn’t score any goals. It was a 2-0 win to the visiting side.
QDid you ever say to her “I thought you would have got on the table, taken your red top off and swung it around”.
ANo
It was Ms Ramstrom’s evidence that, after the game, Mr Baldino asked her back to his room for drinks again, but that she declined, saying that she was going out for air and then to her room.[54]
[54] Transcript p 67.
Mr Nathan Ramstrom gave evidence that Ms Ramstrom told him in a telephone call, during the circuit, that Mr Baldino wanted to watch the game with her in his room, though Mr Ramstrom mistakenly thought that the game was on the Thursday night of the circuit. Mr Ramstrom’s recollection was that he was told by Ms Ramstrom that Mr Baldino had said, whilst having a meal whilst watching the game, that his meal looked as though the chef had “spoofed” into it. Ms Ramstrom also recalled Ms Ramstrom telling him that Mr Baldino said to her “I thought you were one of the – you would be one of those people to take your top off and swing it around your head”.[55]
[55] Transcript p 573.
Mr Baldino’s evidence was that, after the game, both he and Ms Ramstrom went to the poker machine room in the hotel and each bet $10. It was there that they saw the AJO, Mr Terence Wilson. After that, they each went to their rooms.[56]
[56] Transcript p 724.
Thursday 13 November 2008
Ms Ramstrom said that court finished on Thursday 13 November 2008 at about midday. She gave the following evidence about that day:[57]
[57] Transcript p 69.
QHow did you feel that day at about lunchtime.
AI was nervous.
QWhat happened then that afternoon.
AMr Baldino said we’re going to go for a drive.
QWhat did you say.
ANo, I said no.
QThat day, the Thursday, was anything said about Terence.
AYes.
QWhat was said about that.
AWell, he said to me that – he said ‘You stayed with Terence all night last night didn’t you’ and I said ‘No, I went and got some air then I called my husband and then I went to bed’, ‘No, you stayed up with Terence didn’t you. You were having fun with Terence weren’t you’. He was really angry and upset. Apparently he thought I was with Terence all night and I wasn’t. I got blamed. I don’t appreciate that.
QHow did you feel.
AWell, I felt like he was making wild accusations and like he was jealous that he wasn’t there or something.
QWhere did you have lunch that day.
AI think it was at – well, Mr Baldino had lunch at Coffin Bay possibly.
QDid you go.
AYes
QWhy did you go.
AHe drove me.
QWhy did you go. Did you want to go.
AWell, I had nothing to do for the rest of the afternoon. It was 12 o’clock or something.
QAs best you remember that day was anything said about a waterslide.
AYes. He said that there was a waterslide near where he had lunch on Thursday. Before his trip to Coffin Bay he had lunch at this – I don’t know the name because I’m not familiar with Port Lincoln, but there’s this restaurant there and it has a waterslide next to it and he said that there’s a waterslide and that I could have went on the waterslide for the afternoon because we had the afternoon free and I said I didn’t bring my bathers and he said ‘You could have went in your birthday suit’.
QDid he say what he meant by birthday suit.
ANo, I don’t think so. I think we all know that means.
QHow did you feel when he said – what did you understand it to mean.
AHe wanted to see me naked, it’s disgusting.
QHow did you feel when he said that.
AMortified, like sick, disgusted by it.
QWhen he spoke about –
AScared.
QWhen he spoke about a waterslide at a restaurant was he specific as to which restaurant or did you not know.
ANo, we were leaving the restaurant and I could see the waterslide there.
QDid you have lunch at that time.
AI don’t believe so.
QAnd then afterwards, after lunch what happened then.
AMr Baldino started driving to Coffin Bay I believe.
QDid he tell you why.
AHe wanted to go to the oyster farm.
QDid you say anything about that.
AI forgot what we were just talking about, sorry.
QWas anything said about an oyster farm.
AYes, yes. He said like he was going to take me to the oyster farm and I said I don’t want to see the farming of any animal, I’m a vegan.
QDid you go to the oyster farm.
AYes, he drove me there.
QDid you want to go.
ANo.
QDid he say why he was taking you.
AHe wanted to show me around Port Lincoln he said.
Mr Baldino denied making accusations about Ms Ramstrom and Mr Terence Wilson.[58] Mr Baldino’s evidence was that he sat through part of lunchtime on Thursday, which finished the day’s business in Court. He decided to take a drive to Coffin Bay and asked Ms Ramstrom if she would like to join him.[59] They ate lunch together at the organic snack bar in Port Lincoln, and then drove to Coffin Bay, where he pointed out some houses and oyster processing yards and sheds to Ms Ramstrom. Mr Baldino said that he and Ms Ramstrom had a drink at the Coffin Bay Tavern.[60] Mr Baldino denied having the conversation Ms Ramstrom gave evidence about concerning the water slide.[61]
[58] Transcript p 726.
[59] Transcript p 725.
[60] Transcript p 727.
[61] Transcript p 837.
In cross examination, Ms Ramstrom agreed that she went to the Tavern in the course of the drive on Thursday.[62]
[62] Transcript p 452.
Ms Ramstrom said that Mr Baldino again asked her to go out with him for dinner on Thursday night. She refused. The following exchange took place in examination in chief:[63]
[63] Transcript p 71.
AYes, he wanted me to go out for dinner with him and I refused again.
Q       Did you say why.
AI think he knew why at this point.
Q       Had you previously said why you wouldn’t have dinner.
AAlways, every time I would say no and I don’t eat out. I bring my own food. You save money on circuits and you bring your own food and I don’t eat anything that’s in shops anyway because I’m an organic vegan.
Q       Because.
AI’m an organic vegan.
QAnd so then when you said that about not wanting to go to dinner did Mr Baldino say anything then.
A‘Come to my room for drinks at least because it was the last night’.
Q       Did you say anything about that.
AI said I didn’t want to come but he said ‘Come to my room, it’s the last night’ so I went.
Mr Baldino denied asking Ms Ramstrom to join him for dinner on Thursday night. He agreed that he asked her to join him for an after dinner drink, and she said yes.[64]
[64] Transcript p 727.
Ms Ramstrom gave the following evidence in relation to Thursday night:[65]
[65] Transcript p 73-75.
QDid Mr Baldino say anything about that circuit.
AYes.
Q       What did he say.
AHe said it was the most uneventful circuit he had of his whole life.
Q       What did you say if anything.
AI said ‘I don’t know what you’re talking about, I’ve worked really hard this week’.
Q       Did he say anything to that.
AYes, he said that he was bored and he was lonely. I said ‘Why don’t you call your wife then?’ And he said ‘I talk to her during the day, I don’t need to talk to her at night’.
QWas anything said about at that time, or around about that time of clerks on circuits.
AYes, he said that usually - he goes ‘Usually – ’ he was really angry, he was really disappointed that I wasn’t what he wanted for that week, you could tell. Because he said that ‘Other clerks usually go out to dinner every night and that’s what they do and they drive the magistrates home pissed’ and he even said that word and ‘That’s what clerks do and you get drunk every night and then you go to work and that’s what you do, you have fun on circuit, circuits are to have fun on and I’ve had the most uneventful boring week’. I said ‘Well, if you want that kind of clerk I’m not that kind of clerk, I’m not that person’. I was wearing a big jumper, big surfie jumper, my big pants, and I was just feeling so drained by that point and scared and I just wanted to go home and I was sick of it, and then he was still at me about the whole week. I went – I told him I went out of my comfort zone that whole week. Even just going in his room is out of my comfort zone. It makes me feel scared.
QOn that occasion did you have any alcohol to drink.
ANo, not one glass.
QDid you try to talk to him about other matters.
AYes.
QWhat did you try to talk about.
AGardening.
QGardening.
AI love gardening. I love cooking. That’s all I want to talk about.
QOn that occasion did he keep talking about such matters with you or something else.
ANo, he mentioned about how when he was in Port Lincoln that he’d seen a celebrity on the beach.
QA celebrity. Did he say whether that celebrity was a male or a female.
AHe said she was a female.
QDid he say anything about the occasion.
AHe said that it was a cold day and she had a tight wetsuit on and she had huge breasts and her nipples were hard, and he went down to get a closer look. He left his room to get a closer look. She was on the shoreline taking – getting photographs taken of her, and he had a male clerk at the time and he told me how they both went down there to check her out. He said to me – and he even had his hands out going ‘Huge breasts’ that’s what he did. (DEMONSTRATES)
QHow did you feel when he said that.
AI was scared
QAnd why were you –
AMy husband doesn’t even talk like that. It’s disgusting. It’s like putting me on the spot and making me feel really uncomfortable.
QWhen he said that, did you remain in the room.
AI pretty much left after that. I wasn’t in there very long that last night, I wanted to get out. I was so drained and tired. I just wanted to go home and be safe.
QBefore you left his room that evening was anything said about Italy.
AYes.
QWho said something about Italy.
AMr Baldino said that he was in Italy once in a nudist colony and he was naked, and the girls there had their breasts hanging out and everyone was naked. It was disgusting because I don’t want to even think about that stuff. I was – you know, I was disgusted. I don’t want to have any images of anything like that in my head. It’s the way – he was very descriptive when he was talking about people’s breasts.
QWhen you left the room where did you go then.
AThursday night?
QYes
ABack to my room.
Mr Ramstrom gave evidence that Ms Ramstrom related to him that Mr Baldino had told her a story about passing a beach whilst with a clerk and noticing a female celebrity being swamped by people and going closer and being able to see her nipples through her swim suit or wetsuit.[66]
[66] Transcript p 577.
In his evidence, Mr Baldino denied that the conversations related by Ms Ramstrom in her evidence in relation to Thursday night took place. Mr Baldino said that he had said to Ms Ramstrom that, on circuit, some magistrates and clerks stay up late at night and have fun and the clerks end up driving the magistrate home, but he said that on Monday night.[67] Mr Baldino recalled telling Ms Ramstrom that he had once seen a celebrity at the Port Lincoln airport and had obtained her autograph for his daughter, but he said that he had not referred to breasts or nipples in that context. The celebrity was Jacqueline McKenzie, and she was filming a program on sharks in Port Lincoln.[68]
[67] Transcript p 844.
[68] Transcript p 454, 456, 728, 781.
Mr Baldino denied ever saying anything to Ms Ramstrom about a nudist colony in Italy or anywhere else. He said that he has never been to a nudist colony.[69]
[69] Transcript p 729.
Ms Duffield, a sheriff’s officer who works in the Port Lincoln Magistrates’ Court, gave evidence in the complainant’s case. Ms Duffield said that she and Ms Ramstrom met for the first time during the Port Lincoln circuit in November 2008. She said that, in the course of that circuit, she and Ms Ramstrom had several conversations, sometimes outside during breaks in court proceedings. Ms Duffield was unable to recall precisely what was said at what time. However, she gave evidence that in one of her conversations with Ms Ramstrom during that week, Ms Ramstrom:[70]
…made mention that she has a tongue piercing, and Mr Baldino had asked her about her tongue piercing and whether her husband liked her tongue piercing and what her husband likes her to do with that tongue piercing..
[70] Transcript p 596.
Ms Duffield also recalled the following:[71]
She [ie Ms Ramstrom] also explained that Mr Baldino made mention that he had a spa in his suite, in his hotel room. He invited Rebecca to have a spa with him. She claims that she responded that she didn’t have her bathers, and Mr Baldino replied ‘Well that’s okay, you can go in your bra and knickers’.
[71] Transcript p 596.
Ms Duffield thought that Ms Ramstrom seemed upset as she related these things.
Ms Duffield also gave evidence that Ms Ramstrom told her that Ms Ramstrom felt that she was unable to mix with other court staff members on circuit: “that her time was wholly and solely with Mr Baldino, that she was unable to do anything else but to be his clerk”.[72]
[72] Transcript p 598.
Friday 14 November 2008
On Friday, there was nothing listed in Court in the afternoon. It was Ms Ramstrom’s evidence that Mr Baldino told her that he always bought prawns on the last day of the Port Lincoln circuit to eat in his room. Ms Ramstrom said that Mr Baldino insisted that she go with him to buy prawns.[73] Ms Ramstrom’s evidence was that Mr Baldino drove her to a prawn farm, where he bought prawns.[74] She was unable to describe the prawn farm, or its surroundings, except to say:
They had like – they had metal cage things there, like cage things and yeah and there was a shop and he went in the shop. It was a big building thing and he went in there. I don’t know what it’s called. I’ve never been to Port Lincoln.[75]
[73] Transcript p 75.
[74] Transcript p 76.
[75] Transcript p 457-458.
She said that when they returned to Port Lincoln, Mr Baldino asked her to his room again, but that she had him drop her at the organic café, where she had lunch with two sheriff’s officers.[76] There was no evidence as to the identity of these sheriff’s officers. Ms Duffield’s evidence was that she did not have lunch with Ms Ramstrom.[77]
[76] Transcript p 76.
[77] Transcript p 611.
Ms Ramstrom said that she checked out of the hotel after lunch. She said that Mr Baldino suggested that they go for a drive to Whalers Way before going to the airport to catch their flight home. She said that Mr Baldino drove very fast and she was scared that they would not get back to the airport in time to catch the flight. When she said this to Mr Baldino, he said that they could stay another night in Port Lincoln. Eventually, Ms Ramstrom said, Mr Baldino turned the car around angrily before reaching Whalers Way. He did, however, stop at a winery on the way to the airport.
Ms Ramstrom said that, on the shuttle bus at the airport, the following took place:[78]
Well I looked at my watch and I remember I said to Mr Baldino that: ‘Oh, my husband will still be home at least when I get home’. That’s because he works nights. He said: ‘What, you’ve got time to go to bed with your husband before he goes to work?’
[78] Transcript p 79.
Ms Ramstrom’s husband, Nathan Ramstrom, was working night shifts at the time.
Mr Baldino’s evidence was that he checked out of the hotel at 9:30 am on Friday 14 November 2008, and that Ms Ramstrom checked out before him. They loaded the bags in the car and drove to court. He adjourned the court at lunchtime and he and Ms Ramstrom returned the security passes to the registry. Mr Baldino said that he drove to the Lincoln Cove Marina for lunch, and Ms Ramstrom chose to accompany him.[79] They did not go to a prawn farm or buy prawns. They did not return to the hotel. They had checked out.[80] After lunch, they had “time to kill” before catching the flight at 4 or 4:30 pm, so they went for a drive to Whalers Way. However, Mr Baldino said, the bitumen stopped about half way there, so he decided to turn around. Mr Baldino said that they stopped at the Boston Bay winery on the way to the airport, and Ms Ramstrom came into the winery with him. He said they had plenty of time. He denied saying to Ms Ramstrom that they could stay another night in Port Lincoln.[81]
[79] Transcript p 730.
[80] Transcript p 730.
[81] Transcript p 732, 845.

Mr Baldino remembered a conversation with Ms Ramstrom on the airport shuttle bus. He remembered commenting that she would have a couple of hours with Nathan.[82] He denied saying anything about them going to bed together. He denied that his comment contained any sexual innuendo[83].
[82] Transcript p 461.
[83] Transcript p 733, 461, 845.
Mr Baldino recalled that, on the plane on the way home, Ms Ramstrom squeezed his arm. He related that back to something she had told him earlier, which was that she was afraid of flying. [84]
[84] Transcript p 733, 710.
In his statement, Mr McInnes, the General Manager of the Hurley Hotel Group, said:[85]
8.The Hotel’s usual check out time is 10am. Room keys are coded to expire shortly after that. Sometimes a guest will be given access to their room after checking out if they need it for a particular reason.
9.There is no record of whether Mr Baldino accessed his room on the afternoon of 14 November 2008, after he checked out. It is unlikely that he would have been given access to his room to eat lunch in it at 1pm on the day of his check out.
[85] Exhibit R36.
Dr Pincombe is a psychiatrist who began treating Ms Ramstrom in November 2010. In her report of 2 August 2012,[86] Dr Pincombe wrote the following, under the heading “History provided by the patient”:
On her trip away with Mr Baldino on the circuit she reported he had been inappropriate for the whole week, stating that “all clerks come to my hotel room”, and was very angry at her for not booking him a spa room, despite having not asked her to do so. He suggested she go in the spa with him in her underwear, tried to push wine on her, despite her refusals, and kept wanting her to go to his room with him. He also repeatedly touched her back, following which she ran out of the room and threw up.
Other comments included talking of women’s nipples and of having been nude while travelling in Italy. She stated that by day 4 she was very very distressed, and described her time on the circuit as having been both unpleasant and highly pressured, with him being constantly critical of her, as well as inappropriately suggestive.
[86] Exhibit P14.
Dr Jadhav was a psychiatrist who treated Ms Ramstrom in 2010 in the context of her work injury claims. He is now deceased. A report of Dr Jadhav dated 13 September 2010 was tendered in the respondent’s case.[87] Dr Jadhav wrote:
She also stated she has been sexually harassed by two magistrates. One magistrate made sexual advances to her when she was working with him in the country office she reported him to her senior, however no action was taken against him.[88]
[87] Exhibit R3.
[88] Exhibit R3 p 2.
Events immediately after the circuit
When she returned to work in Adelaide on Monday 17 November 2008, Ms Ramstrom complained to Ms Judy Carter, Manager of the Magistrates Clerks Branch of the Magistrates Court, about her experiences on the Port Lincoln circuit.[89] Ms Carter told Ms Ramstrom that she had the option to proceed with the matter formally or informally[90]. After considering the matter overnight, Ms Ramstrom elected to proceed informally. A meeting was convened between Ms Ramstrom, Mr Baldino and Ms Carter for Thursday 20 November 2008. In her evidence, Ms Ramstrom said that, near the beginning of the meeting, she became a bit emotional and cried a bit. Ms Ramstrom, in her evidence gave the following account of the meeting:
[89] Transcript p 80.
[90] Transcript p 82.
AJust that how you made me feel uncomfortable the whole week I was in Port Lincoln; that you don’t ask a married woman to get into the spa; that’s not appropriate for you to ask me back to the room; that no pressure, no pressure, I felt pressured, when you say no pressure it means pressure; I’m married, you’re married, it is inappropriate for me to be in your room. I was pointing to my ring, it was very – I felt like yeah.[91]
[91] Transcript p 84.
…
AJust about being like not appropriate for me to – for him to ask me to be in the spa, to be in my bras and knickers, because I forgot my bathers and ‘That you had a most uneventful circuit and you made me feel uncomfortable the whole week’. [92]
…
AI said ‘You made me feel sick, scared and I’m a married woman and you don’t do this and it’s inappropriate for you to be asking me to go back to your room. It’s inappropriate’, you know, I just kept saying ‘Inappropriate, inappropriate’ over and over and my manager was silent and I took over the meeting. Then Mr Baldino took off his eyes, wiped a tear from his eye and said ‘I humbly, humbly apologise for the way I made you feel’.
QWas that his first response –
AWell, first he said ‘I’m – ’, he goes ‘Oh, I don’t know what this is all about’ when my manager had mentioned about the sexual harassment, he said ‘I don’t know what this is all about’. That’s when I took over ‘cos she didn’t know what else to say. So that’s what I did and I put it to him what he made me feel like and what he did to me.
QSo then after you described these things did he then wipe the tear from his eye.
AYes and he apologised many times – humbly, he said ‘Humbly apologise’.[93]
…
AI had already discussed it with my husband, so when he apologised I waited a moment and then I said ‘I accept your apology’, ‘cos I already had it in my head that if he was going to do that, that’s what I was going to say.[94]
[92] Transcript p 85.
[93] Transcript p 85-86.
[94] Transcript p 86.
Mr Baldino’s account of the meeting was different:
QNow at the meeting did Ms Ramstrom make a number of complaints about the week.
AI understood that she was making a complaint about having been asked to have afternoon drinks with me.
QWas anything said about the spa as you remember it.
AI don’t recall anything being mentioned by her about the spa.
QHow did she appear.
ATo put it frankly, she was a mess, she was angry, she was agitated, she was crying, sobbing.
QWhat was your response to what she was complaining about.
AI said that I was sorry if I’d offended her.
QWhat was the outcome of the meeting.
AThe complainant then said to me that she still wanted to continue to clerk for me if I would have her.
QWhat was your response to that.
AI obtained Judy Carter’s nod or [sic] approval and I said ‘Yes’.[95]
[95] Transcript p 734-735.
Ms Carter’s account of the meeting was different again. She gave evidence that the meeting was not particularly emotional. She recalled that Ms Ramstrom had explained that she felt pressured to drink alcohol and to go to Mr Baldino’s room to drink alcohol.[96] Ms Carter said that she had difficulty remembering which other matters Ms Ramstrom had raised at the meeting. In cross examination, she agreed that Ms Ramstrom had said at the meeting that she had felt pressured by Mr Baldino to watch the soccer with him in his room.[97] Ms Carter recalled Ms Ramstrom saying that Mr Baldino had pressured her to have a spa with him, even though she did not have her bathers with her.[98] Ms Carter was asked:
Did she complain that he had said words to the effect that she wanted to go home for two hours of sleep, meaning sex with her husband.
[96] Transcript p 938.
[97] Transcript p 989.
[98] Transcript p 990.
Ms Carter replied, “Yes”.[99]
[99] Transcript p 990.
Ms Ramstrom gave evidence that, shortly subsequent to the meeting, she told Ms Carter that she did not want to work with Mr Baldino, and that Ms Carter had replied that there was no-one else who would work with him and that it would be best if she continued with Mr Baldino.[100]
[100] Transcript p 89.
Ms Carter’s evidence was that she gave Ms Ramstrom the option of not continuing as Mr Baldino’s clerk.[101] At the end of the meeting, Ms Ramstrom opted to continue as Mr Baldino’s clerk. It was Ms Carter’s evidence that at no time, then or subsequently, did Ms Ramstrom seek to be assigned to another magistrate.[102] Ms Carter denied that she ever said to Ms Ramstrom that Ms Ramstrom was required to keep working with Mr Baldino because no-one else would work with him.[103] Both Ms Wood and Ms Cresp, who were magistrates clerks at all relevant times, gave evidence that they were happy to work with Mr Baldino.
[101] Transcript p 984.
[102] Transcript p 999.
[103] Transcript p 939.
Ms Ramstrom gave evidence that Ms Carter told her that Mr Baldino would be banned from circuits for a while. Ms Ramstrom said that, on the Friday of the week of the meeting, Mr Baldino “pulled me into a corridor” after a Court session and, with tears in his eyes, told her that he was banned from going on circuits for 12 months.[104] Ms Carter gave evidence that Ms Ramstrom was actually working at Port Adelaide on the Friday of the week of the meeting, so this incident cannot have taken place as Ms Ramstrom said she remembers it.[105] Mr Baldino’s evidence was that he never spoke to Ms Ramstrom about the future arrangements for him as far as circuits were concerned.[106] Ms Carter’s evidence was that the next two circuits were taken from Mr Baldino and given to other magistrates. Mr Baldino next went to Pt Lincoln in July 2009.
[104] Transcript p 87-88.
[105] Transcript p 940.
[106] Transcript p 864.
The Working Relationship after the circuit
Ms Ramstrom described her relationship with Mr Baldino following the Port Lincoln circuit as “professional”.[107] Mr Baldino thought it was a “strong” professional relationship.[108] He did not think that Ms Ramstrom was fearful. He thought she was friendly.[109] She initiated banter.[110]
[107] Transcript p 89.
[108] Transcript p 865.
[109] Transcript p 869.
[110] Transcript p 870.
Findings in relation to the November 2008 circuit and the meeting after it
The events of November 2008 form part of the circumstances to be taken into account pursuant to s 87(9) in determining whether Mr Baldino sexually harassed Ms Ramstrom in the period from June to September 2010. Those events are relied upon in the complainant’s case. For those reasons, it is necessary to make findings of fact in relation to those events.
Credibility
We accept that Ms Duffield, Ms Roche, and Ms Cresp gave evidence in relation to what they were told by Ms Ramstrom about the circuit which was truthful, to the best of their recollection, bearing in mind that the events occurred in 2008. Their evidence is relevant, not as evidence of the existence of the events Ms Ramstrom discussed with them, but as evidence that those discussions took place in those terms. Their evidence does not constitute corroboration of Ms Ramstrom’s evidence of the material events. We accept Ms Wood’s evidence. We accept that the section of Dr Pincombe’s report[111] entitled “History provided by the patient” accurately records what Ms Ramstrom told Dr Pincombe about the Port Lincoln circuit of November 2008.
[111] Exhibit P14 p 2.
Mr Ramstrom acknowledged that his recollection of his conversations with Ms Ramstrom during the circuit was flawed because it was so long ago and he did not take notes.[112] His evidence was, indeed, patently inaccurate in that he thought that the soccer game took place on Thursday night when, in fact, it was on Wednesday night. We accept that Mr Ramstrom gave honest evidence to the best of his recollection, but his recollection was not entirely reliable.
[112] Transcript p 570.
Mr Baldino was clearly under stress as he gave his evidence. He frequently took some pains to limit his answers to the precise terms of the question, which was sometimes unhelpful. However, we accept that Mr Baldino gave his evidence truthfully to the best of his ability. The evidence of all of the witnesses was affected by the length of time which had passed since November 2008.
Ms Ramstrom was emotional from time to time as she gave her evidence. Periodically, she had difficulty focussing on the question she was asked, and at times she lost concentration altogether. We accept that the state of her mental health played a role in her difficulties in giving evidence. Her evidence was also affected by the length of time which has passed since the circuit. However, there are issues which go beyond demeanour and state of mind which cause us to doubt Ms Ramstrom’s credibility.
Ms Ramstrom’s account of arriving at the Port Lincoln Hotel at 9am on Monday 8 November 2008, with Mr Baldino going to his room and returning to reception at the Hotel to complain about not having a spa and having a balcony which blocked his view, was not credible. The affidavit evidence of Mr McInnes, which was tendered by consent, said that the hotel records disclose that Ms Ramstrom and Mr Baldino checked in at 10.24am. Mr McInnes said that guests are not usually given access to their rooms until 2pm, which is consistent with Mr Baldino’s evidence that, although he checked in shortly after 10am, he first gained access to his room after lunch. Given Mr Baldino’s familiarity with the hotel because of his previous visits on circuit, and his familiarity with the Magistrates Court’s procedures for making bookings for circuits, it is highly unlikely that Mr Baldino complained about his room either to the Hotel reception or to Ms Ramstrom. It is highly unlikely that he became very angry with Ms Ramstrom for not booking him a spa room for the same reason. We do not believe Ms Ramstrom’s account.
Ms Ramstrom’s account of the Friday lunchtime of the circuit was that Mr Baldino insisted that she visit a prawn farm with him so that he could purchase prawns and take them back to his hotel room and eat them for lunch. She was unable to describe the prawn farm in any detail. Ms Ramstrom said that, on the way back to the hotel, Mr Baldino dropped her at the Organic Café where she had lunch with two sheriff’s officers, who were never identified, despite the fact that Ms Duffield, who was a sheriff’s officer at the Port Lincoln Court at the relevant time, gave evidence in the complainant’s case. Mr McInnes’ evidence was that the usual check out time was 10am, and that it was unlikely that Mr Baldino would have been permitted to have access to a hotel room on the Friday after checkout time. Ms Ramstrom’s account of lunch time on the Friday of the circuit is inherently improbable and her evidence was unconvincing. We do not believe her account of the events of the Friday of the circuit where they are at odds with Mr Baldino’s account.
There is no doubt that there was not a spa in Mr Baldino’s hotel suite in Port Lincoln. There is also no doubt that the Port Lincoln Hotel does not have a spa available for the general use of guests. There is a swimming pool for that purpose. In evidence, Ms Ramstrom said that Mr Baldino had said that his clerks usually go in the spa with him. When Ms Ramstrom said that she didn’t have her bathers, her evidence was that he said she could have gone into the spa in her bra and knickers.[113] Ms Ramstrom’s evidence of the meeting in Adelaide which followed the circuit was that she said to Mr Baldino at that meeting that it was not appropriate for him to ask her “to be in the spa”.[114] Ms Ramstrom told Ms Duffield, Dr Pincombe and Ms Roche that Mr Baldino had asked her to have a spa with him in her bra and knickers or underwear. She told Ms Carter the same thing, and mentioned to Ms Cresp that Mr Baldino had asked her to have a spa with him. Mr Baldino denied the conversations alleged about the spa. He agreed that, when Ms Ramstrom commented that she did not know that the hotel had a pool, so she did not have her bathers, he told her she could swim in knickers and a t-shirt. Ms Ramstrom, in evidence, related a similar conversation, but added that he had said that he would watch her. Clearly, what Ms Ramstrom said to Ms Duffield, Dr Pincombe, Ms Roche, Ms Carter and Ms Cresp was not true. There was no spa, so there simply could not have been an invitation to have a spa together. It seems to us that Ms Ramstrom has taken the swimming pool conversation and extrapolated and twisted it in her mind and in her account to others. We do not believe Ms Ramstrom’s evidence in relation to the spa. We do not believe that Mr Baldino said that he would watch her in the swimming pool.
[113] Transcript p 51.
[114] Transcript p 85.
The story Ms Ramstrom told about Mr Baldino’s comment to her whilst watching the soccer game on the Wednesday night of the circuit was that, when Adelaide United scored a goal, Mr Baldino whispered to her “I thought you would have got on the table, taken your red top off and swung it around”. Adelaide United did not, in fact, score a goal in the course of the game in question. Mr Baldino’s version of this conversation was that he asked Ms Ramstrom if she was like one of the supporters who swung their tops around when attending a game. This was a reference to her own description of herself as an ardent supporter of Adelaide United. We believe Mr Baldino. We find that, in her version, Ms Ramstrom distorted Mr Baldino’s comment to make it much more personal to her, rather than referring to a practice observable at soccer games, and to give it a sexual connotation which was not, objectively, present. We do not consider that the comment Mr Baldino made was “a statement of a sexual nature” or “conduct of a sexual nature within the meaning of s 87(9)(a)(ii) and (b) of the Act.
Mr Baldino agreed that he instructed Ms Ramstrom to say that he would not attend the circuit dinner on the Thursday night of the circuit. Ms Ramstrom’s evidence was that he also said that she was not to go to the dinner, and that he instructed her to tell “them” that it was cancelled. We accept Mr Baldino’s version of this conversation. Ms Ramstrom’s version is inherently unlikely and her evidence was unconvincing. Even if her version were true, there was no basis upon which she could reasonably infer that Mr Baldino meant, by cancelling the dinner, to imply that she should spend time only with her, and yet this is what she told Ms Duffield.[115]
[115] Transcript p 598.
We do not believe Ms Ramstrom’s allegation that Mr Baldino said, on the Wednesday night, that the chef had “jerked off” in his salad. We note that Mr Ramstrom recalled Ms Ramstrom telling him that Mr Baldino had said that the chef had “spoofed into it”. We believe that Mr Baldino commented that the steak sandwich on Tuesday, at lunchtime, at Lincoln Cove, looked as if the chef had “spewed” into it, and that Ms Ramstrom has, once more, twisted the comment and added a sexual overtone. It is not necessary for us to go into the other allegations, including Ms Ramstrom’s allegations that Mr Baldino said that if she got “pissed” she could sleep on a bed in his hotel suite, that he accused her of spending time with Mr Terence Wilson and that he said that she could go on the waterslide in her birthday suit. In relation to all of them, Ms Ramstrom’s version does not satisfy us on the balance of probabilities.
It was Ms Ramstrom’s evidence that, on the Friday after her return from Port Lincoln in November 2008, Mr Baldino “pulled me into a corridor” and with “tears in his eyes” said that he was banned from circuits.[116] Ms Ramstrom said that Mr Baldino told her that he was banned from circuits for 12 months.[117] As we have said, it was Ms Carter’s evidence that Ms Ramstrom was not working at the same court as Mr Baldino on that Friday, so this simply cannot have happened. Nor was Mr Baldino banned from circuits for 12 months. The next two Port Lincoln circuits were simply assigned to another Magistrate.
[116] Transcript p 87 - 88.
[117] Transcript p 87.
As we have said, the relevance of the evidence about the Port Lincoln circuit is as a factual context forming part of the circumstances in relation to which we must make an assessment of Mr Baldino’s conduct from June to September 2010 for the purposes of s 87(9)(a) of the Act. We do not consider that the evidence concerning Port Lincoln forms a history of sexual harassment of Ms Ramstrom by Mr Baldino. It is clear that Ms Ramstrom felt uncomfortable being away from home whilst on circuit. It is clear that she was conflicted about how to deal with the social aspect of the circuit. She seems to have been predisposed to interpret Mr Baldino’s words and actions by reference to an idea of hers that he had a sexual interest in her. No factual basis has been established for that idea.

At times, it seemed that she was complaining about being asked out to meals and to drinks, yet Ms Roche told her that she did not have to accept the invitations if she did not want to. Ms Ramstrom seemed to hold the belief that a married woman should never be invited to a hotel suite for a drink by a work colleague. We do not consider this to be a reasonable belief in mainstream contemporary Australian culture. The invitations by Mr Baldino to join him for drinks in his hotel suite did not constitute “conduct of a sexual nature” and nor could a reasonable person have anticipated that Ms Ramstrom might have been offended, humiliated or intimidated by the invitations, so the invitations did not constitute sexual harassment pursuant to s 87(9)(a)ii. Ms Ramstrom appeared to be complaining about being offered wine when she prefers to drink bourbon whiskey. She said that she felt pressured to drink the wine and accept the invitations because Mr Baldino said “No pressure, no pressure”. We find this unreasonable. At no time, on her own case, did she, during the circuit, indicate to Mr Baldino that she was uncomfortable with what was happening.
Ms Ramstrom’s reactions to being on circuit were unusual, but we find that there is no reasonable basis for a complaint that they resulted from any fault of Mr Baldino. We note that Dr Jadhav, according to his report, got the impression from Ms Ramstrom that a magistrate in the country had made sexual advances to her. That is not consistent with Ms Ramstrom’s own case, and clearly did not occur. Ms Ramstrom gave a lot of evidence about what she said were her reactions to the events of the circuit; fear, disgust, shock and discomfort, chiefly. She said that she cried from time to time and was sick. It is not necessary for us to make any finding in relation to the veracity of this evidence. We comment that such evidence cannot corroborate Ms Ramstrom’s version of the events of the circuit.
Work injuries and Ms Ramstrom
Voluminous work injury records in relation to Ms Ramstrom were tendered.[118]
[118] Exhibit R27.
Ms Ramstrom gave evidence that she experienced wrist pain in September 2008.[119] Then, in July 2009, she lodged a claim in relation to her injury and took about two weeks off.[120] In August 2009, a return to work plan was formulated providing for a graduated return to work culminating in 5 days of general Court. Ms Ramstrom attended a series of appointments and case conferences. Her injury was diagnosed as “a Brachial Plexus Compression/Neuritis”.[121] In December 2009, Ms Ramstrom was cleared, medically, to go back to work full time.[122] On 11 January 2010 Ms Ramstrom reported a further injury to her wrist, which she said had occurred whilst she was using her swipe card to gain entry to the court building.[123]
[119] Transcript p 91.
[120] Transcript p 92-93.
[121] Exhibit R27 Tab 9.
[122] Transcript p 191.
[123] Transcript p 191, 954.
The second injury reported by Ms Ramstrom was followed by a further series of appointments and case conferences, time off work and a further attempt to bring about a graduated return to full time work. The work injury records reflect that, in March of 2010, there was an attempt to put Ms Ramstrom into a general court with Mr Ackland SM, but Ms Ramstrom indicated that she was very upset that she would not be working with Mr Baldino.[124] In cross examination, Ms Ramstrom agreed that she had been in tears and had complained about the prospect of not working with Mr Baldino whilst she was at a meeting concerning her rehabilitation with Ms Hynes, and Dr Bhise was speaking to them by speakerphone.[125]
[124] Exhibit R27 Tab 27.
[125] Transcript p 211.
At the end of May 2010, Ms Ramstrom reported a further relapse of her wrist injury which was not explained by reference to any incident.
Dr Bhise, Ms Ramstrom’s general practitioner, provided her with a certificate on 31 August 2010 which said that she should “follow her Magistrate”. This can only be a reference to Mr Baldino.[126]
[126] Exhibit R27 Tab 41.
Ms Carter had frequent contact with Ms Ramstrom throughout 2009 and 2010 in the context of her injury claim. It was Ms Carter’s evidence that, although Ms Ramstrom had a lot to say in case conferences about her progress and what she felt was appropriate for her, at no time did she ever complain about any behaviour of Mr Baldino’s towards her.[127] We accept Ms Carter’s evidence.
[127] Transcript p 965.
The following exchanges took place in the course of Ms Ramstrom’s cross examination:[128]
[128] Transcript p 196-197.
QDo you agree that you told Ms Carter that you didn’t want to be assigned to another magistrate.
APossibly.
QWell, why would you do that.
AI recall five days a week in general court, they were putting me to do before they were going to clear me of full duties and Mr Baldino wasn’t in general court five days a week, so they would take me from him and they would put me in general court five days a week and if I got to just say the fourth day in the general court and then I had a bit of pain and I wasn’t able to do it on the Friday, I had to start the week after, I had to try and do five days again in the general court, each week, until I was finished. Mr Baldino was not rostered in the general court and that’s why I would have said about following the magistrate because it’s less work than actually when I was doing WorkCover rehabilitation and the requirement of me to be in court, general court five days a week.
QSo you preferred to be working with Mr Baldino than any other magistrate, is that what you’re saying.
ANo, I’m not saying that.
QWell, isn’t that what you told –
AI’m saying it was easier for me to be assigned to a magistrate instead of when they were taking me from the magistrate into general courts.
QBut you could have gone to another magistrate and had the same arrangement as Mr Baldino, he wasn’t the only one who had those hours.
AWhat month are you talking about, what year?
QAny time, 2009, 2010.
AWell he was appropriate.
QAll of 2010.
AHe was – all of?
QYes.
HER HONOUR
QSo put it another way was there ever a time at which it was put to you that you could go to another magistrate.
APossibly, yes.
QWhen would that have been.
AIt might have been just after the exacerbation.
QJust after the January incident.
AMm-hmm.
QWhat was your response to that.
APossibly … what was my response to what sorry?
QTo the suggestion that you might change magistrates.
AYes, yes.
QWhat was your response, how did you respond to that suggestion.
AI was in agreeance to stay with my magistrate, yes.
QTo stay with Mr Baldino.
AYes.
QThis was in a conversation with who, do you recall.
AI don’t recall, sorry, no.
QBut it was someone in the CAA hierarchy.
AI believe so, yes.
XXN
QWhen you say in agreeance you were the one who wanted to stay, they wanted you to shift, isn’t that right.
ANo, that’s not correct.
QThey wanted you to shift because of Mr Baldino’s particular workload and the need for you to do modified duties, isn’t that right.
AThat’s untrue.
QBut you didn’t want to shift, did you.
ANo.
It is not necessary for us to make any findings in relation to Ms Ramstrom’s work injury claims. Those claims form part of the context within which Ms Ramstrom made the complaint which is now before us. In addition, it is relevant to the matter before us that there were times in 2010, in the months in which incidents the subject of Ms Ramstrom’s complaint to the Commissioner were allegedly taking place, when Ms Ramstrom chose to work for Mr Baldino in preference to working for other magistrates. This casts doubt on her evidence as to her extreme negative emotional responses to working with Mr Baldino.
Emails
A folder of emails was tendered in the respondent’s case.[129] The folder contained 44 emails sent by Ms Ramstrom to Mr Baldino from 27 November 2008 to 1 September 2010. Very few of the emails are work related. Some of them are informative, some of them are “cute”. Many of them are jokes, which Ms Ramstrom referred to in evidence as “funnies”. Quite a few of them relate to animals. Some are jokes about “seniors”. Some are sexist. One is a joke about a Polish person. Mr Baldino’s wife is of Polish heritage. The few emails included which are work related have an easygoing, informal tone. Several of the emails are quite vulgar, showing partially clothed people play acting.[130] Videos which were sent by Ms Ramstrom to Mr Baldino, via email, were shown to the Tribunal. One of the videos showed monkeys copulating on the boot of a car. Another showed a partially clad man dancing in a vulgar way with a pole. A further video showed a dog stealing a girl’s bikini top.
[129] Exhibit R5.
[130] Exhibit R27 Tab 24.
The emails and videos sent by Ms Ramstrom to Mr Baldino indicate to us that the relationship between them had an informal, easy going, humorous element. Ms Ramstrom was an initiator of communications with Mr Baldino, some of which were funny and vulgar and pertained to sex.
Poniatowska
On 16 October 2009, Mr Baldino heard sentencing submissions in Commonwealth v Poniatowska. In the course of those submissions, a judgment of the Federal Court was tendered. The Federal Court had awarded Ms Poniatowska $450,000 compensation for sexual harassment. One of the e‑mails sent by Ms Ramstrom to Mr Baldino referred to this matter and indicated that she was about to type the sentencing remarks. [131] In cross-examination the following exchange took place:[132]
[131] Exhibit R5 No 26.
[132] Transcript p 345 - 350.
QThere’s then an email about the matter of Poniatowska, no. 26.
AYes.
QYou typed the sentencing remarks in that.
AIt seems to be I did, yes.
QWhat do you remember about that matter.
ANot much – I remember it was just something about Centrelink.
QRight.
AAnd that’s all I remember because I didn’t really listen to the details.
QYou didn’t discuss the matter with Mr Baldino.
ANo. Mr Baldino discussed this matter with me.
QRight.
AMm. He mentioned her name to me and did I know who she was before we were going to court.
QRight. About what?
AHe said that she – he asked me if I knew about her, he asked me if I knew about her.
QRight.
AYeah.
QWhen was this.
AWhen? I can’t be sure when but that name I remember it because he told me that she had something to do with sexual harassment and he asked me what do you think and I said it’s none of my business and the story ended and we went to court and we were in court and I think he may have made it part heard and she was in there for Centrelink fraud.
QRight.
AYes. He made a mention first, I never mentioned anything.
QYou’re absolutely sure of that.
APositive.
QTell me; what was said about Ms Poniatowska’s sexual harassment claim.
AI have no idea.
QYou don’t read the papers.
ANo.
QYou didn’t read any –
ANo I didn’t.
QDon’t read the Advertiser.
ANo, I don’t read that stuff, no.
QYou don’t watch television news.
ANo, not really.
QAt no stage in 2009 do you say you read The Advertiser.
AYes, I didn’t read it.
QAt no stage in 2009 did you watch the TV news.
ANo. I never saw this at all, I swear I never saw it.
QWhat didn’t you see.
AAnything to do with this name, anywhere at any time. I only saw her when she was in court and Mr Baldino made a mention of it to me and that’s how I found out about anything.
QHave you learnt anything since about Ms Poniatowska’s –
ANo, only from what Mr Baldino told me.
QWell, and you didn’t say well how much did she get.
ANot at all.
QWeren’t you a bit curious.
ANo, it’s none of my business.
QDidn’t keep an eye on the paper.
ANo.
QDidn’t hear the figure of 450,000.
ANo, never, never in my life.
QTook no interest.
ANever in my life, no.
QYou didn’t say to Mr Baldino, I should have sued my previous employer for sexual harassment.
ANo.
QIs that how you felt you should have sued your previous employer.
ANo, no, not at all.
QYou typed the remarks in relation to Ms Poniatowska, didn’t you.
AIt seems to be I have, yes.
QThe matter was heard during 2009, wasn’t it.
AIt seems to be the case.
QWere submissions made during that matter by counsel who appeared for Mrs Poniatowska in your presence in court about her sexual harassment claims as part of mitigation and penalty.
AI cannot remember.
QYou don’t think that that’s something that might stick in your mind.
AWhy would it.
QNot every day a woman gets 450,000 for sexual harassment in this State.
AWhat’s your point?
QThat I’m suggesting to you that your evidence that you did not watch TV, you did not read an Advertiser for all of 2009 and therefore could not have heard a whisper about her successful claim for $450,000 is simply incorrect evidence.
ANever. Okay, if you say so. I’ll stand by what I say because I speak the truth. I don’t get involved, I’ve got a life, I don’t get involved in anything to do with the news.
QYou see this email –
ANot that thing.
Q– this email –
AYes.
Q– means you cannot deny –
AYes.
Q– you knew about the matter of Poniatowska.
AMr Baldino told me about it.
QYou typed the sentencing remarks.
AI may have.
QYou took the notes for the sentencing remarks in court to type them.
AIt would have been on my digital if anything.
QRight.
AYes.
QAre you saying that having typed the sentencing remarks, having taken the notes, that you did not –
AI didn’t take the notes, I just took the sentencing remarks, if you’re saying I did.
QYou’ve typed them.
AOkay. I don’t remember it, I don’t remember anything in there. That’s the truth, I type a lot of things, I can’t sit there all day and remember everything I’ve ever typed and care about any detail in it. It’s not for me to worry about, I’m a clerk, I just do my job.
QCan I just show you those sentencing remarks. Looking at those remarks, can you say whether or not you typed them.
ACan I just have a moment please? I’m sorry, do you have a question, sorry?
QI thought you’d agreed with me that you typed them as the notes of 12 November 2009 behind tab 26 indicates that you were intending to do that day.
AIt doesn’t mean I did it though, I can’t recall.
QMs Ramstrom –
AI can’t recall. I’m not a liar, that’s for sure. I can’t recall – if I can’t recall, I can’t recall. I’m not well.
QYou say I’ll be typing your sentencing remarks hopefully today –
AYeah, I say that but it doesn’t prove that I did it because sometimes you say you’re going to type sentencing remarks and if you’re caught up in court, another clerk may type them for you, especially if there’s an appeal, especially if it’s urgent. So I’m not going to say I typed this because I can’t remember anything of it. So you know –
QYou see this matter I suggest was before Mr Baldino on these dates –
ASure.
QAnd I’m suggesting according to, in fairness to you, according to the court records and diaries.
AYes.
Q29 June 2009, 6 July 2009, 31 July 2009 and 9 October 2009. Do you say that you don’t remember whether or not you were in court at any stage when the matter of Poniatowska was before Mr Baldino on any of those four days.
ANo, I do remember being in court on one of those days, yes.
QWas that when submissions were made.
AI can’t recall.
QWell, if the Federal Court judgment when Ms Poniatowska received $450,000 came down and was published, it was public knowledge, on 23 June 2009, namely –
ASorry, are you reading from somewhere?
QNo, I’ll just ask you to answer my question.
ASorry, sorry.
QIf the Federal Court judgment came down when – in which Ms Poniatowska was awarded $450,000 –
ASure
Q– if that judgment came down on 23 June 2009 and you were in court six days later and spoke to Mr Baldino on one occasion, do you think it might have been on 29 June you spoke to him about the judgment.
AI’m not putting a date to anything that I spoke to him about the judgment because I have no recollection of –
QRight, so you say that given the fact and I’ll ask you to assume this is a fact.
ASure.
QThat in June 2009 –
AJune, yes I have just to get it in my head –
QPrior to –
AJune, yes.
Q– this matter being listed before Mr Baldino on at least five occasions subsequently –
ASure.
Q– you say you had no clue at any time whether through submissions of counsel, reading in the paper or anywhere else, that Mrs Poniatowska got 450,000 for sexual harassment.
AI’ve never heard that in my life.
The matter of Poniatowska was raised in the respondent’s case as the basis for an inference that the complainant has fabricated her claim in an attempt to gain monetary compensation. The evidence before us in relation to Poniatowska, however, is not an adequate basis for such an inference.
The Complaint to the Commissioner
The substance of Ms Ramstrom’s complaint against Mr Baldino to the Commissioner was contained in a letter dated 16 September 2010 which was addressed to Mr Gary Thompson, the Chief Executive Officer of the Courts Administration Authority. Ms Ramstrom annexed this letter to her complaint to the Commissioner.
At the time that Ms Ramstrom made her complaint to the Commissioner s93(2) and (2b) of the Act were in force in relation to a time limit:
(2)     A complaint must be lodged –
(a)     if the alleged contravention is constituted of a series of acts – within 12 months of the last of those acts;
(b)     in any other case – within 12 months of the date on which the contravention is alleged to have been committed.
(2a)The Commissioner may, on application, extend the time for lodging a complaint, even if the time for lodging a complaint has expired, if the Commissioner is satisfied –
(a)     that there is good reason why the complaint was not made within the stipulated time period; and
(b)     that in all the circumstances it is just and equitable to do so.
At no time has Ms Ramstrom ever sought an extension of time in relation to any aspect of her complaint. Her complaint is confined in time to the period of 12 months immediately prior to the making of the complaint, which was 23 September 2010. In her letter of 16 September 2010, she referred primarily to a time period of June 2010 to 9 September 2010.
We will deal with Ms Ramstrom’s complaints in chronological order, in so far as that can be ascertained.
June to August 2010
Ms Ramstrom made a series of allegations about incidents which, she said in the letter of 16 September 2010, “happened throughout June through to August”, meaning in 2010:
Allegations No 1, 2 and 3, June to August 2010
1.Mr Baldino said “Don’t think I haven’t noticed you”, I said, “What do you mean” Mr Baldino said this while smirking and laughing.
2.Mr Baldino said “Why didn’t you tell me you were exercising”, I said, “It’s personal” and Mr Baldino kept pushing the questions of why I didn’t tell him that I was exercising at home and I continuously stated “That I didn’t tell anyone as it’s personal and no persons business.”
3.Mr Baldino said that he was seeing a personal trainer and that she is blonde and “all over me”, Mr Baldino said this while smirking and laughing.[133]
[133] Letter annexed to complaint form.

Ms Ramstrom said, in evidence:[187]
[187] Transcript p 105.
AI wore a necklace that was sitting around – and it was long, and the broad was here (INDICATES)
QDown by your breasts.
AYes.
QAnd where did you get that particular necklace.
AOne of the girls at work was selling jewellery and making it and she asked me if I could just wear some things and she could sell it. And it looked nice, so I wore it that day for court.
QAnd did anything happen whilst you were at court.
AYes, she came out of court with him, I was at my desk and I was wearing it and I was going to go down to registry and she walked off, he was there and he said ‘Oh’, and he came up and he grabbed my necklace, but he kept slipping and slipping – and I’m looking at him and he’s slipping and slipping and touching my breasts the whole time. And when he finally grabbed the broach and says ‘You don’t usually wear necklaces like this’, and I was just like – I was scared, I didn’t know what to say and I left. After he let go of my necklace, I left, I wasn’t even in court with him that day. I went straight to registry to hide from him because I was scared.
QWhen you gave that evidence you were demonstrating with your hand about slipping, slipping. For the transcript, what exactly do you mean by ‘slipping’.
AIt was like this, where he managed to touch both breasts from –
HER HONOUR
QIn a scooping motion.
AYes. It took him a few goes to grab the necklace and meanwhile he’s touching it and I’m watching him touch my breasts – it was wrong, it’s disgusting.
Ms Roche said, in evidence:[188]
AHe – Rebecca told me that he had commented on a necklace that she was wearing and he had touched it and brushed her breast when he was touching it.
[188] Transcript p 669.
In evidence, Mr Baldino said:[189]
[189] Transcript p 755.
QAt some stage did something happen or was something said in relation to a necklace she was wearing.
AYes.
QWhat was that.
AI said that looks nice.
QAnd did you do anything when you said that.
AI motioned with my arm towards her neck to indicate what I was talking about.
QWhat were you referring to.
ATo a stone, a turquoise stone around her neck.
QAnd what style of the necklace was it.
AI describe it as a choker, it was very high up around the base of her neck and top of the chest.
In cross examination, Mr Baldino described the stone as being at about the level of the knot of a tie. He said that he had never complemented Ms Ramstrom before, but the stone stood out.
Dr Pincombe, in her report[190] wrote, under the heading “History provided by the patient”:
... on Wednesday she wore a low necklace – he kept grabbing at it and touching both her breasts and laughing:
[190] Exhibit P14.
Last day
In her letter of complaint dated 16 September 2010, Ms Ramstrom wrote:
The last incident of sexual harassment occurred on 9 September 2010. At 1.05pm once court adjourned for lunch, I proceeded to leave the courtroom, return to my desk and then I was going to collect my handbag then go to lunch. Mr Baldino was in the lift with me asking me what I was doing for lunch. I said I was meeting the girls from work for lunch at Bliss Café and I was late. Mr Baldino said while laughing and smirking, “I thought you were going to meet your boyfriend for lunch or something”. Nervously, I responded, “You know I only have a husband”, Mr Baldino replied, “I thought you were meeting your boyfriend” still while laughing. We then got out of the lift and Mr Baldino proceeded to the bathroom and I went to the women’s bathroom. I then proceeded to my desk to collect my handbag. Mr Baldino was already in his Chambers which is situated behind my desk. As I was grabbing my bag, Mr Baldino walked out of his Chambers and picked up a file, started hovering behind me saying he needed to see me at some stage of the day on the file Mr Baldino was holding. My back was still faced towards Mr Baldino and I said once I got back from lunch, I was going to look at it, as it was 1.10pm by this stage. I was standing at my desk searching for my mobile phone in my handbag before leaving, while standing there, out of the corner of my eye I could see Mr Baldino walk back towards his door then Mr Baldino turned and proceeded to walk towards me. I couldn’t see him at this stage as he was behind me with the file still in his hand. I had a really bad feeling in my stomach of uncomfortableness, intimidation, and I was frightened. As I went to turn and leave he slapped me on my left buttocks really hard with a file and said “Off you go”. I jumped slightly, froze from shock, screwed my face up in disbelief and had an overwhelming feeling of sickness. Not looking at him once, I immediately ran out of the room as quick as I could and ran out of the building.
I kept it to myself, didn’t eat at lunchtime as I was in shock and took the meal home. When returning to work I avoided him as I was frightened and met him in court at 2.15pm. I had tears in my eyes the whole time court was in session. We adjourned at 3.30pm and I immediately started dry reaching in the bin, profusely shaking and crying uncontrollably. I was fighting vomiting as there was still a sheriff’s officers and a police prosecutor in the courtroom.
A work colleague who was collecting court materials had noticed my illness and was trying to talk me through what felt like a panic attack.
I reported to the Acting Deputy Assisting Manager Mandy McGann that an incident had occurred and I needed to know when Mr Baldino had left the building so I could then return upstairs to report the incident to my Manager Judy Carter as I was scared to face Mr Baldino. Once I was informed of Mr Baldino leaving the building, I proceeded to go upstairs, was uncontrollably vomiting and shaking in the bathroom, so much whereby, a colleague entered to assist my distress and was holding my hair back. I then collected myself together as best as I could and immediately met with my manager Judy Cater and reported the incident. There was no one who witnessed the assault as in [sic] happened at 1.10pm and lunch commences at 1.00pm until 1.45pm.
In evidence, Ms Ramstrom said that she planned to meet some girlfriends for lunch at Bliss, an organic café, on 9 September 2010.[191] She said that when she and Mr Baldino came out of court that morning they got into a lift together:[192]
[191] Transcript p 108.
[192] Transcript p 109.
AYes, we were in the lifts together, when we came out of court and he asked me if I was going to lunch with my boyfriend.
QWhat did you say.
AI don’t have a boyfriend, I’ve only got a husband, I’m going out with the girls. He said, I thought you were going to see your boyfriend. I thought you were meeting your boyfriend.
QWhen he said that how did he seem, what was his appearance.
ALike he was diminishing my marriage, diminishing my marriage. He was very intimidating, very, ‘are you going to go meet your boyfriend, are ya.’ Like very, like that he was speaking of the truth and that’s what I was doing, he was inferring that I was doing that and I wasn’t, I was meeting the girls.
QAt about that time, did he laugh.
AYeah, he was laughing.
QThen, did you have a handbag that day.
AYes.
QDid anything happen about it – did you go and get a handbag.
AYes
QCan you say what happened.
AYeah. So I went back to my desk and Mr Baldino was in his chambers and then, I was getting my stuff ready for lunch and I was trying to find my phone and then he was behind me and he was saying that he needed to see me about a file and I said that I had to go meet the girls and can we talk about it after and he was hovering behind me with a file in his hand, he said, ‘yes, all right, we’ll talk after, I’ll see you after lunch’. Then he started walking up behind me and he smacked with the file onto my left buttock and said, ‘Off you go’, and he was laughing and it hurt, it wasn’t a soft hit. It wasn’t his hand, it was a file but he said, ‘Off you go’ and like I was nothing to him and just a you know, piece of crap, just going – go, off you go.
QHow did you feel.
AI was disgusted and scared, I was shaken, I wasn’t feeling good at all but I had to go meet the girls for lunch. I didn’t know what to do, I didn’t know what to do, no one’s ever touched me like that.
QHow did you manage to behave at lunch with the girls.
AI tried to not tell anyone, I told Heidi. I didn’t talk to a lot of girls there about personal stuff because I’m a private person, so I just mentioned to Heidi and I said I don’t feel good and I’m – this has just happened and I didn’t know how to react and I had to go back into court in half an hour. So I didn’t know what to do. At that point, I was just shaking and I just had to leave the building, so I left and then I met the girls.
QDid you return to court for the afternoon or part of the afternoon.
AYes, yeah, yeah.
QWere you in court.
AYes.
QWas Mr Baldino in court.
AYes.
QDid the court adjourn at some stage that afternoon.
AYes.
QCan you say approximately when it adjourned.
AApproximately 3.30, 4.
QWhen it adjourned did you do something.
AYeah, I lost control of everything, as soon as he left I was shaking and dry reaching in the bin and one of the girls there, Heidi was there and she was trying to comfort me. She was in there for a video conference or something, she was in there for something else but she happened to be there and she witnessed just me just not coping very well and –
QWhat bin were you referring to.
AIn the court.
QIn the court.
AYeah, it was underneath the desk and prosecution was still there and the sheriff’s officers, they were still there and Heidi was sort of saying, can you go because it was getting very uncomfortable because I couldn’t even face them. I was just – I just – uncontrollable, uncontrollable panic and everything. I never experienced that in my life until that day.
QWhat happened with the bin.
AI was dry-reaching in it, I had it at my face, down below and I was (DEMONSTRATES) yeah, kneeling into it, trying not to be sick, I could have been sick but I didn’t want to be sick in court. I was sick later in the toilets upstairs.
QSo what happened after you were dry reaching in the rubbish bin, did you remain in court or did you go somewhere else.
AYeah, I was sitting there because I didn’t want to go near him because I knew he was still in his chambers. So I stayed there and I rang Mandy the acting supervisor, can you please tell me when he leaves. I need to come up here, I need to report something.
QHmm-mm.
AAnd she rang him and told me when he left, which was maybe about half an hour after that. Then I was comfortable enough to come up and then I went to the toilet and I was vomiting and everything in there.
QMandy being, do you know Mandy’s last name.
AMcGann.
QSo then you went upstairs.
AYes.
QSorry you said – where did you go.
AI went to the bathroom first, I was not well.
QDid you do anything in the bathroom.
AYeah, I vomited in the toilet. I think one of the girls was holding my hair back, she come [sic] in and she was holding my hair back, I just can’t remember – I think I do know who it was but -
In cross examination, Ms Heidi Roche stated with absolute certainty that she did not meet Ms Ramstrom for lunch on 9 September 2010. She gave the following account of her part in Ms Ramstrom’s afternoon:[193]
[193] Transcript p 670.
AWhen I got into the courtroom, the court was still in session and I was just going to sit in the court and wait for that, and Rebecca, sort of – there was a look that she gave me that she wanted to stay and talk to me.
QWhat happened then.
ACourt adjourned. There was still a prosecutor in the courtroom. I walked around and sat next to her on the clerk’s bench and we waited for that prosecutor to leave and then she broke down.
QWhat happened.
AShe was inconsolable. She couldn’t speak. I was asking her ‘What’s wrong? What’s the matter?’ I was really concerned for her. She started – to the point where she was dry-retching into a bucket, into the bin under the desk.
QIs this in the courtroom.
AThis was in the courtroom still, while she was at the clerk’s bench.
QDry-retching into the bin.
ADry-retching into the wastepaper bin, and I said ‘What’s wrong? What’s wrong?’ and she said that Mr Baldino had flicked her bum with a court file going down the hallway to the – the back corridors down into the courtroom and she had just had enough. She said that she had had enough. It was – she couldn’t take any more. She did use the words that she hated him.
QWhen she was giving you this history as to what had happened, was it easy to get the history from her or, given her condition, was it difficult to –
AThe conversation that we had then, no, it was hard. It took her several minutes for her to calm down. She was physically upset.
QOnce she started and you could get her to talk –
AYes –
Q– was it easy to get the history of what had happened or did it come out in bits and pieces or what, or can you not remember.
AI can’t remember. I am not going to guess at how it came out.
QDid you remain with her.
AYes. I would estimate we were probably left there for about half an hour and then I just said to her she needs to go and see Judy now, she needs to go, yes, and I think I remember looking – it was about 4 o’clock and I said she needs to go and catch Judy now, she needs to go and tell her now…
In cross examination, Ms Ramstrom agreed that she had made a signed statement on 13 February 2013 which gave an account of the events of 9 September 2010 which omitted any mention of Ms Roche. The following exchange took place in cross examination:[194]
[194] Transcript p 169-170.
Q… you’ve looked at the various further and better particulars that have been lodged haven’t you, with your lawyers.
AYes, the recent one, yes.
QNo mention of Heidi at all on 8 September in any of those. You agree.
AYes.
QAgain, another mistake was it by your lawyers is that what you are saying.
AI’m not saying it’s a mistake, it was probably just overlooked.
QYou see I suggest that what you said about Heidi and her being there at lunchtime you’ve made up. What do you say about that.
AUntrue.
QAnd when I say being there at lunchtime, whether she was there or not, what I am suggesting to you is that you never spoke to her about anything to do with Mr Baldino. Isn’t that right.
AI whispered to her. Yes, I did say it to her.
QAnd you agree, just to be clear, that in the statement you did give to your lawyers and that you knew was being given to Mr Baldino on 13 February, the person you mentioned as being there at 3.30-4 was a person called Mandy McGann. Isn’t that right.
AShe was there as well, yes, she came down, she came downstairs to see me.
QMy question is, when you gave your statement to your lawyers on 13 February this year, you addressed the question of who was there didn’t you by saying Mandy McGann was there. Would you like to look at the statement again or do you accept you have just read that you said Mandy McGann was –
AYes, sorry, I did just read that, yes, I did read that, yes.
QSo, my point is that you referred to who was there at 3.30 and the person you remembered was Mandy McGann.
AYes.
QSo, what you are telling the members of the tribunal is ‘Although I put in my statement on 13 February, Mandy McGann was there, the person that was constantly in my mind was Heidi but I didn’t put her in the statement’. Is that what you’re saying.
AThat’s correct and I’m not well and I must have overlooked that part.
Mr Baldino gave this account of the day:[195]
[195] Transcript p 755-756.
QCan I then come to the following day, 9 September, were you in court that day with Ms Ramstrom.
AYes.
QAnd she’s made an allegation that you said – smacked her on the left buttock with a file and said ‘Off you go’ did that happen.
ANo.
QWhat happened after you left court, where did you go.
AI used the back security way to make my way to the lifts to go to the fifth floor into my chambers.
QAnd she was in the lift with you.
AWhen exiting the security area she was at the lift holding the lift doors open.
QDid she travel in the lift with you.
AYes she did.
QWas anything said between you at that time.
AYes.
QWhat was said.
AThe first thing she said was that she was busting to go to the toilets.
QAnd did you say anything to her about lunch.
AYes, I subsequently asked her what she was doing for lunch.
QAnd what did she say.
AThat she was meeting some girls for lunch.
QAnd did you respond.
AYes.
QWhat did you say.
AI said “I thought you were in a hurry to meet your boyfriend’.
QAnd how did she respond to that.
AShe laughed, appeared to be amused.
QWhy did you say that.
AIt was a tease, just a light hearted joke.
In cross examination, Mr Baldino said that, after his comment in the lift and before Ms Ramstrom went to lunch, he was standing in the doorway of his chambers reading a file and he said to Ms Ramstrom that he would like to see her after lunch to speak about the file. Mr Baldino said that there was no physical contact between him and Ms Ramstrom of any description. Ms Ramstrom was at her desk, changing her shoes, and Mr Baldino was in the doorway of his chambers.[196]
[196] Transcript p 884-885.
Mr Baldino said that he did not observe anything different about Ms Ramstrom’s demeanour after lunch.[197] In the afternoon, Mr Baldino presided over a series of pre-trial conferences, with Ms Ramstrom clerking. Mr Baldino said that he adjourned at about 3:45 pm that day, and told Ms Ramstrom that he was unlikely to be in his chambers when she came up after court because he had to go to a gym session. Mr Baldino returned to his chambers. Mr Baldino gave evidence that, about 20 minutes later, Ms Ramstrom telephoned him in chambers and said that, if he was wondering where she was, she was still in court endorsing files. He did not notice anything out of the ordinary about her in that phone call.[198]
[197] Transcript p 757.
[198] Transcript p 758, 890.
Ms Ramstrom gave evidence that, whilst in court at the end of the day of 9 September 2010, she telephoned Ms McGann and asked her to telephone her back when Mr Baldino had left, which Ms McGann did.[199] Ms Ramstrom then said that she vomited in the toilets, and then went to Ms Carter’s office and waited for her. She spoke to Ms Carter and then went home. She has not returned to work since that day.
[199] Transcript p 111.
Ms Carter gave evidence of her meeting with Ms Ramstrom at 5pm on 9 September 2010. Ms Carter said that, at that meeting, Ms Ramstrom complained that Mr Baldino had said “a couple of weeks ago” “You’ve lost all of your front and some of your arse”.[200] Ms Ramstrom further complained that at 1.10 pm that day Mr Baldino had hit her on the bottom with a file and had earlier said to her in the lift, in relation to lunchtime “Are you meeting your boyfriend?” Ms Ramstrom further told Ms Carter that she had been feeling nervous around Mr Baldino for the last couple of months and had been keeping a physical distance from him whilst walking to court. Ms Ramstrom said that Mr Baldino had been touching her “on and off” over the previous couple of months, for example, in guiding her with his hand in her back “leaving his hand there longer than necessary”. Ms Ramstrom said that Mr Baldino had pulled her by her sore arm and had touched her on the leg. Ms Carter’s notes of the meeting recorded that Ms Ramstrom had said to her that Mr Baldino had said to Ms Ramstrom in court on 8 September 2010 “You’re being very, very cheeky and you need a spanking”. Ms Ramstrom said that Mr Baldino tried to trap her into saying swear words.[201] Ms Ramstrom spoke about the tights and the fancy dress party, and told Ms Carter that Mr Baldino had said “Can’t you bring in yours but make sure they’re washed and clean between the legs”. Ms Ramstrom told Ms Carter that she perceived that Mr Baldino was trying to pressure her into going on circuit with him to Port Lincoln.[202]
[200] Transcript p 1011.
[201] Transcript p 1013.
[202] Transcript p 1014.

Dr Pincombe, in her report[203] under the heading “History provided by the patient” wrote:
..on Thursday after being in court with him, while going out of the lifts to meet her girlfriends, he accused her of going to see her boyfriend (knowing she was married) which upset her greatly. When she then left to meet her girlfriends he was lurking behind her and then slapped her across the backside with a file stating “off you go”. At this point she became so distressed that she was vomiting and crying. Later that afternoon she had to [go] back to court with him, and after court had finished had a panic attack, was again dry retching and vomiting in the bin and toilet.
[203] Exhibit P14.
Ms Ramstrom saw another psychiatrist, Dr Jadhav, from August 2010. Dr Jadhav, who is now deceased, provided a report dated 13 September 2010 which was tendered in evidence.[204] It was Dr Jadhav who Ms Ramstrom saw on 8 September 2010, which is the day on which, she alleges, Mr Baldino touched her breasts under the pretext of grabbing a pendant she was wearing. In his report, which is dated one week after that consultation, Dr Jadhav wrote:[205]
She stated she has been very anxious for the last twelve months and from time to time she gets panic attacks at work. Her anxiety started after her manager began to bully her and on occasion psychologically abuse her. She has no support from her manager. She also stated she has been sexually harassed by two magistrates. One magistrate made sexual advances to her when she was working with him in the country office she reported him to her senior, however no action was taken against him. When she was relating the incident to me she became tearful. She has been working in her present job for three years, initially she enjoyed her work but now due to pressure she feels anxious. Sometimes during court proceedings she is unable to leave to go to the toilet or have a tea break as she has to take all the notes.
[204] Exhibit R3.
[205] Exhibit R3.
Ms Ramstrom’s manager was Ms Carter at all relevant times.
Rosters 1 June 2010 to 9 September 2010
The rosters for the Magistrates Court for 1 June 2010 to 9 September 2010 were tendered in evidence.[206] There were 73 working days in that period. On 45 full days and 2 half days of that 73 days, Mr Baldino and Ms Ramstrom were not at the same location as each other. Mr Baldino was at the Murray Bridge Magistrates Court for 18 of those days, at the Holden Hill Magistrates Court for one day, was on leave for 9 days and had various other commitments on some of the other days. Ms Ramstrom was sometimes in the pool of clerks, unallocated, on sick leave (1 day), flexi days (3 days), recreation leave (7 days), WorkCover leave (3 days), allocated to other magistrates (3 days) or at the Port Adelaide Magistrates Court (2 days). On 20 full days and two half days within the period of about three months and one week, Mr Baldino and Ms Ramstrom worked together.
[206] Exhibit R30.
Findings in relation to the allegations
In her complaint to the Commissioner, which was made on 23 September 2010, Ms Ramstrom included allegation no 5 as an incident which had occurred between June and August 2010. By the time of the hearing, Ms Ramstrom had accepted that no such incident occurred in that time frame. By the time of the hearing, Ms Ramstrom was alleging that the incident had occurred at some time in 2009. Ms Ramstrom said, in evidence, that she was unable to say when in 2009 the incident occurred, but guessed that it might have been towards the end of November 2009 or the end of 2009.[207] A complaint in relation to this incident, if it occurred, is out of time and no application for an extension of time has been made in relation to it.
[207] Transcript p 98.
There are additional, insurmountable difficulties with Ms Ramstrom’s account of the incident. The judgment of Mr Baldino in Pantic’s case, in April 2009, which was the only case involving bestiality close to the relevant period, shows that he did not view the DVDs in that case. In February and March 2009, documentary evidence showed that Mr Baldino viewed pornographic DVDs in the matter of Commonwealth v Trajdos, but those DVDs did not show bestiality. The emails tendered include an email from Ms Ramstrom which makes it clear that she typed the reasons in Trajdos.[208]Ms Ramstrom’s evidence, that Mr Baldino told her that he had to watch DVDs containing bestiality, is clearly not true.[209] However, Ms Ramstrom told Ms Roche that Mr Baldino asked her to accompany him and view the evidence in the bestiality trial, presumably meaning the DVDs, and that she had declined. We believe Ms Roche’s evidence. Ms Ramstrom clearly told her a story which was not true. Ms Ramstrom also told Dr Pincombe that Mr Baldino pressured her to watch a bestiality DVD with him.[210] Neither the account Ms Ramstrom gave Ms Roche nor the account she gave Dr Pincombe were consistent with her own evidence before us. We believe Mr Baldino’s account, which was that part way through watching the pornographic DVDs in Trajdos, which he was required to do to inform his decision, he needed help with the remote control, and Ms Ramstrom chose to help him herself rather than summoning a sheriff’s officer.[211] We do not believe that the difficulties with Ms Ramstrom’s evidence in relation to this allegation are wholly explicable by her emotional or psychiatric state. We are concerned that Ms Ramstrom included this allegation in her complaint to the Commissioner as having occurred within the preceding four months, when the events on which it was based occurred more than a year earlier than that. We find that Ms Ramstrom fabricated her story to Ms Roche, Dr Pincombe and the tribunal, loosely based upon the incident with the remote control and extrapolated by reference to the facts in Pantic’s case. We note that, even on Ms Ramstrom’s evidence, she was not exposed to any pornographic material. We do not consider that any of Ms Ramstrom’s evidence in relation to the watching of DVDs or her conversations with Mr Baldino on that topic is reliable.
[208] Exhibit R5 Tab 14.
[209] Transcript p 94.
[210] Exhibit P14.
[211] Transcript p 740-742.
Allegations 1 – 4, 6, 7 and 8 are all allegations by Ms Ramstrom where there is no corroborating evidence. We do not consider that Ms Ramstrom is a reliable witness. For that reason, her evidence does not satisfy us on the balance of probabilities (with or without the Briginshaw onus) that the events and conversations took place as she alleged. This disposes of allegation no 4, which was the allegation that Mr Baldino pretended to mishear Ms Ramstrom when she said certain words. Mr Baldino flatly denied this allegation.
In relation to allegations 1, 2 and 3, Mr Baldino gave evidence that he told Ms Ramstrom that his personal trainer was “hands on professional, and she worked me very hard”. Mr Baldino denied that he ever said to Ms Ramstrom that he had noticed that she had “Lost all your front and all your back”, but he said that he told her that he had noticed that she had lost a lot of weight. Both Ms Ramstrom and Mr Baldino gave evidence that they would talk sometimes about cooking and food. In the context of their relationship, we do not consider that the comments made by Mr Baldino, on his account, amount to sexual harassment, as defined in the Act.
Allegation no 6 concerns the tights Mr Baldino was trying to obtain for the medieval costume party. Mr Baldino and Ms Ramstrom gave very different versions of this series of events. Given our view of Ms Ramstrom’s credibility, we find that this allegation has not been proven on the balance of probabilities.
Allegation no 7, which is the allegation that Mr Baldino accused Ms Ramstrom of finding a witness “cute”, is disposed of on the basis that Ms Ramstrom’s account is not reliable. On Mr Baldino’s account of the conversation, no sexual harassment took place.
Allegation no 8 is the allegation that Mr Baldino asked Ms Ramstrom to go to Port Lincoln with him again. In the context of the findings we have made in relation to the Port Lincoln circuit of November 2008, this is not an allegation of sexual harassment. In any event, we believe Mr Baldino’s account of the conversation in preference to Ms Ramstrom’s.
Ms Ramstrom’s allegation that Mr Baldino would sometimes put his hand on her back to guide her was flatly denied by Mr Baldino. This allegation has not been proven to the requisite standard of proof.
Ms Ramstrom’s allegation that Mr Baldino pulled her by her sore wrist is not believable. The version of this story that Ms Ramstrom gave Dr Pincombe is quite fanciful, in that it introduces closed circuit TV cameras where there are none and has Mr Baldino laughing as he hurts Ms Ramstrom’s wrist and makes her cry.[212] We do not believe the version of this story which Ms Ramstrom related in her complaint, or the version she gave in evidence,[213] or the version she gave Dr Pincombe. Mr Baldino said that he touched Ms Ramstrom on the arm and told her she was going to the wrong floor.[214] We believe this account. There was no sexual harassment in this incident.
[212] Exhibit P14.
[213] Transcript p 102.
[214] Transcript p 749.
The allegations regarding the touching by Mr Baldino of Ms Ramstrom’s leg on 6 September 2010 were denied by Mr Baldino. Ms Roche’s account of what Ms Ramstrom told her about that incident[215] was markedly different from Ms Ramstrom’s account. Dr Pincombe’s account of what Ms Ramstrom told her was different again.[216] This allegation has not been proven to the requisite standard.
[215] Transcript p 669 - 670.
[216] Exhibit P 14.
Mr Baldino admitted saying to Ms Ramstrom “Thank you, you need a spanking” in court in the afternoon of 6 September 2010. He explained that he said it as a joke to put her at her ease when she made a mistake and appeared flustered.[217] We note that Ms Ramstrom embellished the comment in her later report of it to Ms Carter.[218] In the context of the relationship between the complainant and respondent as revealed in the emails tendered and the evidence of each of them, we consider that the comment admitted to by Mr Baldino, whilst inappropriate, did not amount to sexual harassment under the Act. In all of the circumstances, a reasonable person would not have anticipated that Ms Ramstrom would be offended, humiliated or intimidated by the comment, which was clearly intended to be lighthearted.
[217] Transcript p 751.
[218] Transcript p 1013.
We do not believe the allegation that Mr Baldino touched Ms Ramstrom’s breasts whilst grabbing for her pendant on 8 September 2010. Ms Ramstrom saw Dr Jadhav late in the afternoon of that day, and it would be very odd if she had not mentioned that incident to him, had it occurred. Dr Jadhav wrote a report in relation to that consultation, in which he referred to allegations of sexual advances made in the country in the past, but made no mention of a sexual assault on the very day of his consultation.[219] Ms Ramstrom’s account of this incident, in any event, does not ring true.
[219] Exhiit R3.
Mr Baldino admitted saying to Ms Ramstrom, in the lift after court in the morning of 9 September 2010 “I thought you were in a hurry to meet your boyfriend.”[220] He intended the remark as a joke. In the context of all of the evidence about the relationship between the complainant and the respondent, we do not believe that this comment amounts to sexual harassment.
[220] Transcript p 755 - 756.
Ms Ramstrom alleged that, before she went to lunch on 9 September 2010, as she walked away from her desk outside his chambers, Mr Baldino hit her quite hard across the buttocks with a file.[221] She said that she went to lunch at Bliss, off Gouger Street, immediately after this incident and that she told Heidi Roche, who was at the lunch.[222] Ms Roche gave evidence that she was not at the lunch. Ms Roche said that Ms Ramstrom told her late that afternoon that Mr Baldino had flicked Ms Ramstrom on the “bum” with a court file in the corridor behind the courtroom.[223] That location is on a different floor of the building from Mr Baldino’s chambers. This account is obviously in conflict with Ms Ramstrom’s evidence of the alleged incident. Mr Baldino denied hitting Ms Ramstrom with a file, but said that he did mention that he needed to speak to her about a file after lunch. He said that she was at her desk, changing her shoes to go out, when the conversation occurred.[224] Ms Ramstrom’s evidence in relation to this allegation falls well short of satisfying us on the balance of probabilities that the incident alleged by her occurred.
[221] Transcript p 109.
[222] Transcript p 109.
[223] Transcript p 670.
[224] Transcript p 884 - 885.
Ms Ramstrom clerked for Mr Baldino in court for an afternoon of pre-trial conferences on 9 September 2010. Ms Ramstrom’s account of her breakdown that afternoon has varied from time to time. It is different from Ms Roche’s account.[225] We do not accept the detail of Ms Ramstrom’s account, but clearly Ms Ramstrom experienced some kind of emotional upheaval that afternoon, after court, and went home. She has not returned to the workplace.
[225] Transcript p 670.
Summary and Conclusion
In order to succeed in her claim against Mr Baldino for sexual harassment, it is necessary, as a first step, for Ms Ramstrom to prove, on the balance of probabilities, with the Briginshaw standard of proof, that her allegations are true. Those allegations must then fall within the definition relevant to sexual harassment in s 87(9) of the Act. Ms Ramstrom’s claim fails because the evidence called before us does not satisfy the onus of proof in relation to any of Ms Ramstrom’s allegations. Where Mr Baldino has admitted elements of the allegations, or something like them, we have determined, in each instance, that the conduct admitted does not constitute sexual harassment under the Act. Mr Apps argued that Mr Baldino was sexually obsessed with Ms Ramstrom. There is no evidentiary basis for that submission and we reject it. Great emphasis was placed, in the complainant’s case, on her emotional and mental state both throughout her time in the Magistrates Court and subsequently. Even if Ms Ramstrom’s emotional and mental state was as she reported it, that does not support an argument that something in her employment as a magistrates clerk, such as sexual harassment, must have caused that emotional and mental state. The causes could be well beyond the purview of the evidence before us.
In the light of our findings of fact, it is unnecessary for us to deal with the question of Ms Ramstrom’s medical condition. We comment, however, that Dr Jadhav and Dr Pincombe both formed their views on the basis of a version of events given to them by Ms Ramstrom which has been shown in evidence, including the evidence adduced in Ms Ramstrom’s own case, to be materially inaccurate.
The complaint is refused.