Richardson v Oracle Corporation Australia Pty Ltd
[2014] FCAFC 82
•15 July 2014
FEDERAL COURT OF AUSTRALIA
Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82
Citation: Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82 Appeal from: Richardson v Oracle Corporation Australia Pty Limited [2013] FCA 102
Richardson v Oracle Corporation Australia Pty Limited (No 2) [2013] FCA 359
Parties: REBECCA RICHARDSON v ORACLE CORPORATION AUSTRALIA PTY LTD (ACN 003 074 468) and RANDOL TUCKER File number: NSD 438 of 2013 Judges: KENNY, BESANKO AND PERRAM JJ Date of judgment: 15 July 2014 Catchwords: HUMAN RIGHTS – discrimination – causation – whether sufficient causal nexus between sexual harassment and the effects of workplace investigation – whether sufficient causal nexus between sexual harassment and alleged psychological injury suffered as a result of complaint to AHRC and subsequent litigation – whether “false denials” of sexual harasser provided causal link between unlawful conduct and harm suffered rebutting denials in various fora – causation not made out.
HUMAN RIGHTS – discrimination – causation – whether appellant left employment ‘voluntarily’ – whether appellant demoted by employer - whether sufficient causal nexus between sexual harassment and decision by appellant to leave workplace – whether analysis of causation in Medlin v State Government Insurance Commission (1995) 182 CLR 1 applied to decision by appellant to leave employment – Medlin applied – causation made out.
HUMAN RIGHTS – discrimination – indirect discrimination – whether higher prevalence of women as sexual harassment complainants rendered workplace policy imposed on complainants generally as one “disadvantaging persons of the same sex as the aggrieved person” – proper starting point for analysis of indirect discrimination discussed – indirect discrimination not made out.
DAMAGES – assessment of general damages – whether trial judge assessed statutory damages under s 46PO(4)(d) of the Australian Human Rights Commission Act 1986 (Cth) by applying tortious principles – whether damages pursuant to AHRC Act can be awarded to partially compensate for loss - proper approach to assessment of damages under s 46PO(4)(d) discussed.
DAMAGES – assessment of general damages – whether trial judge assessed appellant’s injuries solely by reference to ability to work – whether trial judge assessed general damages by reference to nature of sexual harassment – no error disclosed in trial judgment.
DAMAGES – assessment of general damages – damages for diminished sexual relationship as a result of sexual harassment – decline of relationship discussed by trial judge with reference to a “variety of factors” always operating in a relationship – finding of trial judge overturned - approach to damages and causation where multiple factors potentially at large in recognised loss discussed – damages awarded for diminished sexual relationship.
DAMAGES – assessment of general damages – whether award of damages manifestly inadequate – damages awarded pursuant to s 46PO(4)(d) fundamentally compensatory in nature – nature of damages for sexual discrimination and sexual harassment discussed - damages manifestly inadequate.
DAMAGES – assessment of economic damages – whether trial judge erred in method for calculation of damages – recovery of damages for foregone chance or opportunity - calculating base salary and damages where projected earnings and promotion prospects are uncertain – assessing entitlement to discretionary bonuses – standard of proof - need to assess the circumstances of past occurrences to assess their utility as a predictive tool – challenge to calculation not made out.
COSTS – offer of settlement attracted renewed relevance as result of appeal outcome.
Legislation: Anti-Discrimination Act 1977 (NSW)
Australian Human Rights Commission Act 1986 (Cth)
Disability Discrimination Act 1992 (Cth)
Equal Opportunity Act 1984 (Vic)
Equal Opportunity Act 1995 (Vic)
Federal Court Rules 1979 (Cth)
Federal Court Rules 2011 (Cth)
Sex Discrimination Act 1984 (Cth)
Sex Discrimination Amendment Act 1995
Trade Practices Act 1974 (Cth)Cases cited: Alexander v Home Office [1988] 1 WLR 968; [1988] 2 All ER 118
Allianz Australia Insurance Limited v GSF Australia Pty Limited (2005) 221 CLR 568
Amaca Pty Ltd v King [2011] VSCA 447
Armory v Delamirie (1722) 93 ER 664
Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165BHP Billiton Ltd v Hamilton [2013] SASCFC 75
Brackenridge v Toyota Motor Corporation Australia Ltd (1996) 142 ALR 99
Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44
Clarke v Catholic Education Office (2003) 202 ALR 340
Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64
Commonwealth v Evans (2004) 81 ALD 402Coyne v Citizen Finance Ltd (1991) 172 CLR 21
Crampton v Nugawela (1996) 41 NSWLR 176
Crellin v Kent [2000] VSCA 165
Elliot v Nanda (2001) 111 FCR 240
Fox v Percy (2003) 214 CLR 118
Goldman Sachs JBWere Services Pty Limited v Nikolich [2007] FCAFC 120
Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217
Henville v Walker (2001) 206 CLR 459
House v The King (1936) 55 CLR 499
I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109
Knight v Beyond Properties Pty Ltd (2007) 242 ALR 586
Kraus v Menzie [2012] FCA 3
Kraus v Menzie [2012] FCAFC 144
Lee v Smith [2007] FMCA 59
Leslie v Graham [2002] FCA 32Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Marks v GIO Australia Holdings Limited (1998) 196 CLR 494McGaw v Channel Seven Sydney Pty Ltd [2006] NSWSC 1147
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559Murphy v Overton Investments Pty Ltd (2004) 216 CLR 388
Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471
New South Wales Aboriginal Land Council v Perkins (1998) 45 NSWLR 340
Nikolich v Goldman Sach JBWere Services Pty Limited [2006] FCA 784
O’Brien v Dunsdon (1965) 39 ALJR 78
Obeid v John Fairfax PublicationsPty Ltd [2006] NSWSC 1059
Pitcher v Langford (1991) 23 NSWLR 142
Poniatowska v Hickinbotham [2009] FCA 680
Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362Qantas Airways Ltd v Gama (2008) 167 FCR 537
Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327
Rogers v Nationwide News, John Fairfax Publications Pty Ltd v O’Shane (No 2) [2005] NSWCA 291Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251
Sellars v Adelaide Petroleum NL (1994) 179 CLR 332
Shiels v James [2000] FMCA 2
Smith’s Newspapers Ltd v Becker (1932) 47 CLR 279
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
State of New South Wales v Amery (2006) 230 CLR 174
State of NSW (NSW Police Force) v Whitfield (EOD) [2012] NSWADTAP 27
Sved v Council of the Municipality of Woollahra (1998) NSW ConvR 55‑842Swan v Monash Law Book Co-operative [2013] VSC 326
Tan v Xenos (No 3) [2008] VCAT 584
Teubner v Humble (1963) 108 CLR 491Travel Compensation Fund v Tambree (2005) 224 CLR 627
Walker v Citigroup Global Markets Australia Pty Ltd (2006) 233 ALR 687
Walker v Citigroup Global Markets Pty Ltd (2005) 226 ALR 114Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514
Waters v Public Transport Corporation (1991) 173 CLR 349Whittaker v Unisys Australia Pty Ltd (2010) 192 IR 311
Willett v Victoria [2013] VSCA 76
Wilson v Peisley (1975) 7 ALR 571Texts cited: Thornton, M, The Liberal Promise: Anti-Discrimination Legislation in Australia (Oxford University Press, 1990) Andrades, C, What Price Dignity? Remedies in Australian Anti-Discrimination Law, Parliamentary Research Paper No 13 (1998)
Ronalds, C, “Opening Address III” in Thornton, M (ed) Sex Discrimination in Uncertain Times (ANU E Press, 2010)
Ronalds, C, and Raper, E, in Discrimination Law and Practice (Federation Press, 4th ed, 2012)
Gaze, B, “The Sex Discrimination Act After Twenty Years” (2004) 27(3) University of New South Wales Law Journal 914
Senate Standing Committee on Legal and Constitutional Affairs, Report on Effectiveness of the Sex Discrimination Act 1984 in eliminating discrimination and promoting gender equality (Senate Printing Unit, 2008)
Gaze, B, “The Sex Discrimination Act at 25: Reflections on the Past, Present and Future” in Thornton, M (ed) Sex Discrimination in Uncertain Times (ANU E Press, 2010)
Gaze, B, “Damages for Discrimination” (2013) 116 Precedent 20
Gaze, B, “Anti-Discrimination Laws in Australia” in Gerber, P and Castan, M (eds) Contemporary Perspectives on Human Rights Law in Australia (Lawbook Co, 2013) Gaze, B, and Hunter, R, Enforcing Human Rights: An Evaluation of the New Regime (Themis Press, 2010)
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Sappideen, C, et al, Macken’s Law of Employment (Lawbook Co, 7th ed, 2011)Date of hearing: 19 and 20 August 2013 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 239 Counsel for the Appellant: R Francois with A Rao Solicitor for the Appellant: Picone & Co Counsel for the First Respondent: J J Fernon SC with E Raper Solicitor for the First Respondent: Baker & McKenzie The Second Respondent did not appear
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 438 of 2013
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: REBECCA RICHARDSON
AppellantAND: ORACLE CORPORATION AUSTRALIA PTY LTD (ACN 003 074 468)
First RespondentRANDOL TUCKER
Second Respondent
JUDGES:
KENNY, BESANKO AND PERRAM JJ
DATE OF ORDER:
15 JULY 2014
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.(a) The order made by Buchanan J on 20 February 2013 that “[t]he first respondent is to pay to the applicant within 21 days the sum of $18,000 by way of damages as compensation for breach of s 28B(2) of the Sex Discrimination Act 1984 (Cth)” be set aside and;
(b) in lieu thereof order:
“There be judgment for the applicant against the first respondent in the sum of $130,000.”
3.The first respondent pay the appellant’s costs of the appeal.
4.The orders made by Buchanan J on 19 April 2013 be set aside.
5.The appellant file and serve any submissions on the issue of the costs of the trial within 21 days.
6.The first respondent file and serve any submissions in reply within a further 21 days.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 438 of 2013
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: REBECCA RICHARDSON
Appellant
AND: ORACLE CORPORATION AUSTRALIA PTY LTD (ACN 003 074 468)
First RespondentRANDOL TUCKER
Second Respondent
JUDGES:
KENNY, BESANKO AND PERRAM JJ
DATE:
15 JULY 2014
PLACE:
SYDNEY
REASONS FOR JUDGMENT
KENNY J:
I have had the advantage of reading the reasons for judgment of Besanko and Perram JJ. I respectfully agree with the conclusions their Honours have reached with respect to grounds 1 to 15 and 21 to 28, substantially for the reasons their Honours have given. The reasons which follow deal with the other grounds of appeal, namely 16, 17, 18, 19, 19A and 20. These reasons proffer an alternative discussion of grounds 16 and 17 to that of their Honours, although, as will be seen, the outcome of the appeal is the same.
The appeal is from a judgment of a single judge of the Court delivered on 20 February 2013, in which his Honour declared that the second respondent (Mr Randol Tucker) had engaged in conduct contrary to s 28B(2) of the Sex Discrimination Act 1984 (Cth) (“SDA”) by sexually harassing the appellant (Ms Rebecca Richardson) between April and November 2008, while both were employees of the first respondent, Oracle Corporation Australia Pty Ltd (“Oracle”). His Honour declared that Oracle was vicariously liable for Mr Tucker’s unlawful conduct, pursuant to s 106 of the SDA and ordered that Oracle pay Ms Richardson $18,000 by way of damages as compensation.
Oracle’s appeal against his Honour’s judgment on substantive issues raised three main matters: Broadly speaking, these matters were as to:
1.Causation and indirect discrimination (grounds 1-3, 5-9, 11-12);
2.General damages (grounds 16-20); and
3.Economic damages (grounds 21-24).
There were also grounds as to the insufficiency of his Honour’s reasons (grounds 4, 10 and 15) and specific evidentiary issues (grounds 13 and 14), which were incidental to these issues.
His Honour’s judgment on costs was also the subject of appeal, raised by grounds 25 to 28.
For the reasons stated, I would allow the appeal.
THE DECISION UNDER APPEAL
At the relevant time in 2008, Ms Richardson was working at Oracle’s Sydney office as a consulting manager and Mr Tucker was working at Oracle’s Melbourne office as a sales representative. About April 2008, Oracle put together a ‘bid team’, which included both Mr Tucker and, until December 2008, Ms Richardson, to attempt to secure a commitment from the ANZ Banking Group (“ANZ Bank”) to engage Oracle for the “Secure Access” project (the details of which are immaterial here). The bid team was mostly based in Melbourne, although Ms Richardson was the bid manager from about October or November 2008 when she travelled as required to Melbourne: see Richardson v Oracle Corporation Australia Pty Ltd [2013] FCA 102 (“Richardson v Oracle (first instance)”) at [6]-[9].
Ms Richardson’s sexual harassment case against Mr Tucker arose out of Mr Tucker’s conduct towards her in the course of their work as part of the bid team. Ms Richardson’s case was “based on the allegation that, from the time of her first face to face meeting with Mr Tucker in April 2008, she was subjected to a humiliating series of slurs, alternating with sexual advances, from Mr Tucker which built into a more or less constant barrage of sexual harassment”: see Richardson v Oracle (first instance) at [13]. Ms Richardson’s account of the relevant events was largely accepted.
Ms Richardson relied on a total of eleven incidents, each said to amount to sexual harassment and together evidencing a pattern of unlawful conduct. It is unnecessary to discuss these incidents. They are detailed in the reasons for judgment of the primary judge: see Richardson v Oracle (first instance) at [16], [118]-[144]. The trial judge substantially accepted Ms Richardson’s evidence about Mr Tucker’s conduct and rejected “Mr Tucker’s denials and attempts to defend his conduct as unintended, misunderstood or innocuous”: see Richardson v Oracle (first instance) at [13].
The trial judge ultimately found that an initial exchange in April 2008 “marked the beginning of a pattern of behaviour which was to continue over a period of months”: Richardson v Oracle (first instance) at [126]. His Honour stated (at [126]-[127]):
A repeated pattern in [these] encounters was behaviour by Mr Tucker consistent with the thesis that he was trying to get the upper hand in his relationship with Ms Richardson. Some of those attempts were at least smutty, some were offensive and some (expressed more privately) involved initiatives representing a more direct interest of a sexual kind. When they occurred in the hearing of others they seemed consistently humiliating.
When the remaining incidents … are taken into account I am satisfied that Mr Tucker embarked on a systematic course of conduct that is fairly described as sexual harassment within its statutory meaning. Some of the individual remarks and suggestions constituted sexual harassment in their own right. The first incident fell into that category. Overall, the whole course of conduct did also.
The trial judge described Mr Tucker’s unlawful conduct as “persistent and ultimately callous”: see Richardson v Oracle (first instance) at [148]. He added (also at [148]) that:
It was, I am satisfied, intended at least to demean Ms Richardson and perhaps to humiliate her. Perhaps it was Mr Tucker’s way of attempting to get the upper hand in their disagreements, or before their colleagues and representatives of the ANZ Bank. If so, it was an offensive way of doing so, and ultimately cruel. … The explanations he proffered exposed clearly the falsity of his earlier denials to Oracle. They were insufficient to excuse his conduct. They afford no reason to question the elements and essentials of Ms Richardson’s complaints against him.
Ms Richardson brought an end to Mr Tucker’s sexual harassment of her only when she informed her direct manager, Ms Amanda Swan, about his behaviour. When so informed, Ms Swan contacted Ms Edweena Stratton, the Senior Director of Human Resources for Oracle (“HR”) in Australia and New Zealand. Ms Stratton delegated investigation of Ms Richardson’s complaints to Ms Rachna Sampayo, a member of Oracle’s HR staff in Melbourne. Ms Sampayo spoke with Ms Richardson and subsequently carried out an investigation into Ms Richardson’s complaint.
During the investigation, Ms Richardson continued to have regular contact with Mr Tucker, although only via conference calls or emails. As to this contact, his Honour said (at [47]-[48]):
While the evidence was ultimately unclear about the frequency with which Ms Richardson was involved in ongoing contact with Mr Tucker, I am prepared to accept that, as matters developed, there was regular contact between Ms Richardson and Mr Tucker until the investigation was complete and its findings were provided to Ms Richardson and Mr Tucker. As late as 10 December 2008 Ms Richardson dealt by email directly with Mr Tucker about aspects of the project.
The requirement for Ms Richardson to remain in contact with Mr Tucker after she had revealed the nature of her complaints about him, even while they were being investigated, was criticised in the proceedings. Although there was no suggestion that Mr Tucker committed any further acts of sexual harassment during this period, I am satisfied that these arrangements contributed to some extent to the psychological impact on Ms Richardson of Mr Tucker’s conduct. … .
Their continued contact, it appeared to the trial judge, “compounded Ms Richardson’s distress” ([179]).
Ms Sampayo’s findings supported much of Ms Richardson’s complaint. Mr Tucker subsequently wrote an apology to Ms Richardson, in which he stated that his conduct was intended as “light-hearted banter”; and he provided it to Ms Sampayo. On 15 December 2008, Ms Sampayo sent the apology to Ms Richardson; Ms Richardson “reacted very strongly”: see RichardsonvOracle (first instance) at [51]. Ultimately, Oracle gave Mr Tucker a first and final warning, though he retained his Melbourne position.
On 17 December 2008, Ms Richardson met with Ms Swan to discuss the way forward. Ms Swan’s recollection was that, at this meeting, she made it clear to Ms Richardson that, in light of the fact that Mr Tucker’s position in the company was unchanged, it was her view that it would be better for Ms Richardson not to go into the Melbourne office at all. The trial judge accepted Ms Swan’s evidence that she had only Ms Richardson’s interests in mind at this time: RichardsonvOracle (first instance) at [58]. As to Ms Swan’s repositioning of Ms Richardson within Oracle, his Honour continued (at [68]-[69]):
Ms Swan’s primary motivation, I am satisfied, was to find a way to protect Ms Richardson, about whom she was very concerned. In my view, Ms Swan simply did her best to find a way to accommodate Ms Richardson’s desire to have nothing further to do with Mr Tucker or to risk any further encounter with him. The steps she took, with Ms Stratton’s knowledge and Mr Simek’s approval, were not intended to be, and did not represent, a demotion or a reduction in Ms Richardson’s role or responsibilities.
The “architecture initiative” … appears not to have been as insignificant as [Ms Richardson] tended to suggest. Later evidence showed that the project was being sponsored and developed at a high level within Oracle. It was in fact proposed in early December to Mr Simek that Ms Richardson be involved in a senior capacity. Ms Swan sent Ms Richardson an email on 16 December 2008 drawing the project to Ms Richardson’s attention and foreshadowing her potential involvement in it. These developments appear to be unrelated to the issues with Mr Tucker. I reject the contention that they disclose any diminution of Ms Richardson’s role.
Notwithstanding Oracle’s attempts to reposition Ms Richardson in this way, the trial judge found that Ms Richardson began considering the question of her future employment after she made her complaint against Mr Tucker and before the investigation was complete: RichardsonvOracle (first instance) at [73]. Shortly before Christmas 2008, Ms Richardson telephoned Mr Andrew Ward, with whom she had previously worked at Oracle. Mr Ward was then working from Singapore for EMC Australia (“EMC”) in the same general field as Oracle. According to Mr Ward, “after exchanging Christmas greetings and other pleasantries, Ms Richardson informed him that she was ‘looking for something’ to which Mr Ward responded positively” (although he emphasised that he observed the limits of his contractual restraint): see RichardsonvOracle (first instance) at [76].
Ms Richardson resigned her employment with Oracle by a letter to Ms Stratton dated 5 March 2009. She worked out her notice period. Her employment with Oracle ceased on 3 April 2009. Ms Richardson received a letter of offer from EMC dated 13 March 2009, offering her a starting date of 20 April 2009. Ms Richardson began work at EMC on that date.
Ms Richardson made a number of complaints about Oracle’s investigation of Mr Tucker’s conduct and its aftermath. In substance, her complaint centred on an alleged need for a “formal complaint”; Oracle’s requirement that Ms Richardson continue to work with Mr Tucker while the investigation was carried out; restrictions on Ms Richardson discussing the matter with colleagues while the investigation was being carried out; and Ms Sampayo’s action in sending Mr Tucker’s apology to Ms Richardson: RichardsonvOracle (first instance) at [168]. The primary judge rejected all these complaints about Oracle’s investigation process: see RichardsonvOracle (first instance) at [169], [175], [181]-[185], [193], [199]; cf [240].
Since Oracle failed to show that it took all reasonable steps to prevent Mr Tucker from sexually harassing Ms Richardson, the trial judge held that, under s 106 of the SDA, Oracle was vicariously liable for Mr Tucker’s conduct towards Ms Richardson: see RichardsonvOracle (first instance) at [158], [164]. The trial judge rejected Ms Richardson’s claim that Oracle’s liability extended to compensating her for the distress caused by the investigation process. His Honour held (at [166]) that:
Oracle’s vicarious liability for Mr Tucker’s conduct does not, in my view, without more provide a sufficient foundation for recovery of compensation for added distress caused by Oracle in the conduct of the investigation, to the extent the criticisms were made good.
The trial judge also rejected Ms Richardson’s allegation that Oracle had subjected her to indirect discrimination on the ground of her sex based on ss 5(2) and 14(2) of the SDA: see RichardsonvOracle (first instance) at [186]-[193]. Further, his Honour rejected her claims for contractual damages and compensation for victimisation: see RichardsonvOracle (first instance) at [194]-[205].
The trial judge assessed the damages to be awarded Ms Richardson as compensation for Mr Tucker’s sexual harassment under s 46PO(4)(d) of the Australian Human Rights Commission Act 1986 (Cth) (“AHRC Act”) in terms of non-economic loss and damage and economic loss and damage. His Honour fixed general damages (i.e., damages in respect of non-economic loss and damage) at $18,000. His Honour rejected the contention that the economic losses that Ms Richardson claimed were suffered “because” of Mr Tucker’s conduct. In this latter regard, his Honour held that “the necessary causal link was not established”: see RichardsonvOracle (first instance) at [248].
GENERAL DAMAGES (GROUNDS 16-20)
Section 46PO(4)(d) of the AHRC Act confers a power on the court to make orders, as it thinks fit, including an order for damages by way of compensation for the loss and damage suffered by a victim of ‘unlawful discrimination’ – an expression that includes sexual harassment. The terms of s 46PO(4)(d) are important in the following analysis. Section 46PO(4)(d) is as follows:
If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:
…
(d)an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent; …
The trial judge accepted that Ms Richardson was entitled to damages by way of compensation for the distress she suffered because of Mr Tucker’s unlawful conduct. As noted earlier, his Honour awarded the sum of $18,000 as general damages. Ms Richardson appealed against this award on six grounds (grounds 16, 17, 18, 19, 19A and 20). I discuss each of these grounds below.
Ground 16
Ground 16 was that his Honour erred “by applying the principles for the assessment of damages in tort rather than the assessment of statutory compensation under section 46PO(4)(d)” of the AHRC Act.
At paragraph [208] of his reasons in Richardson v Oracle (first instance), the trial judge stated that:
The applicant and Oracle agreed that, generally speaking, assessment of damages by way of compensation for sexual harassment under the SD[A] would normally follow principles for the assessment of damages in tort. While the principle is not to be strictly applied where a particular case calls for a different approach, I see no reason in the present case to depart from that approach. It is not necessary to discuss the cases which support it.
Although her submissions on this point were not entirely clear, the appellant challenged the trial judge’s statement that normally tortious principles would provide a guide as to the measure of damages under s 46PO(4)(d) of the AHRC Act. Her point was not that the particular circumstances of this case called “for a different approach”. Rather, her argument was made at a higher level. As her counsel said, the difference between the two approaches identified in Ground 16 was an important, but “theoretical” one, which would ground a different determination of liability “at the margins of [a Court’s] assessment”. Counsel went on to observe that, in this case, “we say we’re not at the margins of that assessment” and “even if you applied a common law principle we would still have established causation”.
In written submissions filed before the hearing of the appeal, the appellant denied that there had been any such agreement regarding damages assessment principles, as mentioned by the trial judge. Rather, so the appellant submitted in support of this ground (and thus ground 20), damages were to be assessed, having regard to “the purpose, nature and scope of the AHRC Act and the SDA”. Referring to Waters v Public Transport Corporation (1991) 173 CLR 349 (“Waters v Public Transport Corporation”), the appellant highlighted that “when construing beneficial legislation designed to protect human rights (such as the SDA) the Court has a ‘special responsibility’ to take account of, and give effect to, the purposes and objects of the legislation”.
The chief subject of the passage (in Waters v Public Transport Corporation at 359) to which the appellant referred was a principle of construction. In this passage, Mason CJ and Gaudron J stated at that:
[T]he principle that requires that the particular provisions of the Act must be read in the light of the statutory objects is of particular significance in the case of legislation which protects or enforces human rights. In construing such legislation the courts have a special responsibility to take account of and give effect to the statutory purpose.
These statements were made with respect to the construction of the words “on the ground of the status” and “by reason of the private life” in s 17(1) of the Equal Opportunity Act 1984 (Vic). The same principle would be applicable if there were a question about the construction of s 46PO(4)(d) of the AHRC Act. The issue raised by ground 16 is not, however, one of construction; rather, the issue is as to the proper application of s 46PO(4)(d). Of course, as Gleeson CJ said, in relation to s 82 of the Trade Practices Act 1974 (Cth), in assessing damages for the purposes of exercising a statutory power to award damages, a court is not acting in “a conceptual vacuum”: rather “[i]t is done in order to give effect to a statute with a discernible purpose; and that purpose provides a guide as to the requirements of justice and equity in the case”: see I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109 (“I & L Securities Pty Ltd v HTW Valuers”) at 119 [26]. As his Honour added (in the same passage):
Those requirements are not determined by a visceral response on the part of the judge assessing damages, but by the judge’s concept of principle and of the statutory purpose.
Section 46PO(4)(d) of the AHRC Act supplies the governing criterion for the assessment of the damages to be awarded under this provision. That is, s 46PO(4)(d) contemplates that these damages will be ‘by way of compensation’. In giving content to the concept of compensatory damages in this context, the authorities establish that the court may be guided, at the assessment stage, by the general principles governing the assessment of damages in tort: see Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 (“Hall v A &A Sheiban”) at 238-239 (Lockhart J), 256-257 (Wilcox J); and 281 (French J) and Qantas Airways Ltd v Gama (2008) 247 ALR 273 (“Qantas Airways Ltd v Gama”) at 303 [94] (French and Jacobson JJ). In the latter case, French and Jacobson JJ stated (at 303 [94]) in respect of s 46PO(4) (in its current form):
The damages which can be awarded under s 46PO(4) … are damages “by way of compensation for any loss or damage suffered because of the conduct of the respondent”. Such damages are entirely compensatory. In many cases, as in damages awarded under s 82 of the Trade Practices Act 1974 (Cth) the appropriate measure will be analogous to the tortious. That may not be in every case. Ultimately, it is the words of the statute that set the criterion for any award.
The trial judge described this approach at [208], when he indicated that the measure of damages for the purposes of s 46PO(4) would ordinarily follow tortious principles, although tortious principles would not be applied in a case calling for a different approach. His Honour applied this approach to the assessment of damages in Ms Richardson’s case. Being satisfied that Mr Tucker’s impugned conduct was unlawful discrimination, his Honour assessed damages ‘by way of compensation’ for the loss or damage suffered by the appellant because of that conduct. In so doing, his Honour was guided by tortious principles. Having regard to the authorities, there was no error in this approach. As already stated, the appellant’s challenge was as to the generally applicable principles. The appellant did not argue that, whilst tortious principles provided a guide to the measure of damages in many cases, they could not do so in this case because of its particular characteristics.
At the hearing of the appeal, the appellant argued that the approach approved by the Full Court in Qantas Airways Ltd v Gama (and in Hall v A & A Sheiban) was inconsistent with the High Court’s statement of principle in Murphy v Overton Investments Pty Ltd (2004) 216 CLR 388 (“Murphy v Overton”) at 407 [44] to the effect that:
[I]t is wrong to approach the operation of those provisions of Pt VI [of the Trade Practices Act 1974 (Cth)] which deal with remedies for contravention of the Act by beginning the inquiry with an attempt to draw some analogy with any particular form of claim under the general law. No doubt analogies may be helpful, but it would be wrong to argue from the content of the general law that has developed in connection, for example, with the tort of deceit, to a conclusion about the construction or application of provisions of Pt VI of the Act. To do so distracts attention from the primary task of construing the relevant provisions of the Act. In the present case, analogies with the tort of deceit appear to have led to an assumption, at least at trial, that a person can suffer only one form of loss or damage as a result of a contravention of Pt V of the Act.
There is nothing in Murphy v Overton that would indicate error in the trial judge’s approach. Murphy v Overton (in the above passage) acknowledges that analogies with general law principles can assist. The trial judge did not begin his inquiry by drawing an analogy with any particular claim in tort. Nor did his Honour construe s 46PO(4)(d) as in some way limiting compensatory damages to those recoverable in respect of a particular tort. These were the kinds of error to which Murphy v Overton referred. Rather, the trial judge based his inquiry firmly on the terms of s 46PO(4)(d) and drew on tortious principles only to inform (but not define) the manner in which the statutory task was to be accomplished, to the extent that such principles were capable of providing appropriate guidance in the particular case. This is the approach sanctioned by previous Full Courts; and it is not inconsistent with Murphy v Overton.
The general approach taken by the trial judge to the assessment of damages under s 46PO(4) of the AHRC Act disclosed no error of the kind alleged. Ground 16 therefore fails.
Ground 17
Ground 17 alleged that the trial judge “erred by discounting Ms Richardson’s general damages to remove compensation for: (a) Ms Richardson’s further damage caused by Oracle’s investigation into her complaint; and (b) the ongoing stressor of Mr Tucker’s contravening conduct after November 2008”.
The appellant’s challenge was to the trial judge’s determination that he could not award damages in respect of any loss and damage suffered by Ms Richardson that did not ‘flow directly’ from Mr Tucker’s unlawful conduct but from Oracle’s lawful conduct of its investigation. The short answer to this appeal ground is that the damages to be awarded under s 46PO(4)(d) of the AHRC Act are by way of compensating the victim of sexual discrimination for the loss or damage suffered because of that unlawful conduct. In this case, damages are only available to compensate Ms Richardson for the loss she sustained because of Mr Tucker’s proven sexual harassment of her. Any loss arising from Oracle’s lawful conduct is not compensable unless it was also loss sustained because of Mr Tucker’s unlawful conduct. The trial judge took this into account: see the passage at [240] of his reasons set out above.
As I stated earlier, I agree with Besanko and Perram JJ that the appellant’s submissions about Oracle’s investigation process and any further loss and damage must be rejected. In short, this is because the fact that an investigation follows a formal complaint does not, of itself, create the relevant “causal connection” between the unlawful harassment and any conduct by Oracle during an investigation. This is true whether or not such a sequence is contemplated by the overarching framework for the prevention of sex discrimination, of which the SDA and the AHRC Act form part. The order of events in Ms Richardson’s case does not, of itself, render harm caused by an alleged failure in the investigation process harm “because of the conduct of the respondent”. I emphasise that this is so when regard is had to the words and “discernible purpose” of the SDA and to any guidance given by the general principles governing the assessment of damages in tort. The same must be said of any harm occasioned by Ms Sampayo forwarding Mr Tucker’s apology to Ms Richardson.
I agree too that, in this case, the loss and damage asserted by Ms Richardson under this ground (except for any submission in relation to the apology) seems better characterised as loss occasioned by Oracle’s failure to ensure Ms Richardson and Mr Tucker’s separation during the period of investigation, rather than a failure of the investigation per se. This is an additional problem for the appellant.
Therefore, it must follow that there was no error in his Honour’s assessment of damages of the kind described in 17(a).
The proposition inherent in ground 17(b) that the trial judge discounted Ms Richardson’s general damages to remove compensation for the ongoing stressor of Mr Tucker’s contravening conduct after November 2008 is misconceived. This is not how the trial judge reasoned.
The trial judge found that Mr Tucker’s unlawful conduct ended in November 2008, although Ms Richardson’s “exposure to him lasted until at least 10 December 2008”: see Richardson v Oracle (first instance) at [236] (emphasis added). His Honour preferred the evidence of Dr Klug to the evidence of Dr Phillips, to the effect that Ms Richardson’s adjustment disorder ceased when she left Oracle and joined EMC, although his Honour accepted “the possibility that Ms Richardson’s symptoms extended beyond exposure to Mr Tucker for the six months which the diagnosis accommodates”: Richardson v Oracle (first instance) at [234], [236] (emphasis added). His acceptance of this latter possibility was consistent with the diagnosis of “adjustment disorder” made by the expert psychiatrists: see Richardson v Oracle (first instance) at [219], [225], [236]. On any view of his Honour’s findings, Ms Richardson had ceased to suffer from the adjustment disorder by the time the litigation began in June 2010 or even by the time of the Australian Human Rights Commission (“AHRC”) complaint in October 2009. The trial judge assessed general damages on the basis of these findings.
The trial judge rejected the proposition that, for the purpose of calculating damages, litigation was a stressor that could be added to Mr Tucker’s conduct, or for which Oracle could be vicariously liable. This was because this stressor was not causally relevant. His Honour expressly rejected the view of Dr Zeussman that the stress of the litigation “continues seamlessly from the stress occasioned by Mr Tucker’s conduct”: see Richardson v Oracle (first instance) at [235]. As his Honour said, “[i]f the litigation is a stressor in this case, it is a stressor in its own right. It does not contribute to the diagnosis of psychological injury made out in the present case”: see Richardson v Oracle (first instance) at [235]. His Honour made this finding on the basis of his considered view of the evidence, especially the opinion of Dr Klug.
I agree with Besanko and Perram JJ that the question of causation here is only one consideration relevant to resolving this submission. I agree that Oracle is not vicariously liable for any loss occasioned by Mr Tucker’s false denials in so far as they “forced” Ms Richardson to relive her experiences of his unlawful conduct in the AHRC or this Court. This is because Oracle’s vicarious liability for Mr Tucker’s conduct arises if, in the terms of s 106 of the SDA, it was unlawful under either Division 1 or 2 of Part II, or Division 3 of Part II of the SDA and it has been done “in connection with the employment of the employee”. Mr Tucker’s false denials did not satisfy this statutory test.
Further, I do not accept that Mr Tucker’s false denials can, instead, provide a “causal bridge” linking Mr Tucker’s unlawful conduct and any harm Ms Richardson suffered reliving that conduct for the purported purpose of rebutting the denials in the AHRC or this Court. In written submissions, Ms Richardson argued that “common sense and the evidence of Dr Phillips and Dr Zeussman confirm that Oracle’s investigative process and the litigation process, which required Ms Richardson to continue to recall and recount Mr Tucker’s humiliating acts of harassment, caused Ms Richardson to continue to suffer as a result of this ‘stressor’”. As already noted, the trial judge expressly rejected this interpretation of the evidence, preferring instead Dr Klug’s opinion as set out above. I am not persuaded that the trial judge’s findings (based as they were on Dr Klug’s evidence) about what was a relevant “stressor” and its temporal limits disclosed relevant error. Furthermore, there is nothing in the medical evidence adduced at trial that warrants this Court departing from the trial judge’s finding that “[i]f the litigation is a stressor in this case, it is a stressor in its own right”. The same must be said of the AHRC complaint.
Finally, I note that, to the extent that this ground raised an argument about Oracle’s vicarious liability for Mr Tucker’s false denials and their later consequences, it too must fail for the reasons set out in the previous paragraphs. To the extent that such an argument relied on the logic that unlawful conduct begets a complaint and, in turn, an investigation, it must fail for the reasons already outlined with respect to ground 17(a).
There can therefore be no basis for imputing an error of the kind alleged in ground 17(b) and ground 17(b) must fail.
Ground 18
Ground 18 was that the trial judge had “erred by discounting Ms Richardson’s general damages by reference to the consideration that her psychological damage was not debilitating in that it did not prevent [her] from working or pursuing her career without regard to the debilitating impact on the rest of Ms Richardson’s quality of life and the reasons why she had been compelled to make the complaint”. At the hearing of the appeal, the appellant submitted that his Honour’s statement that her psychological damage was not debilitating was contrary to the evidence of Dr Phillips, and of her family and friends. The appellant further submitted that his Honour failed to have regard to other relevant considerations besides work. I consider that these submissions pay insufficient regard to the entirety of his Honour’s reasoning and, to some extent, take his Honour’s observation out of its proper context.
It is evident from his reasons that the trial judge took into account, as he was entitled to do, the nature and extent of the psychological damage that Ms Richardson had suffered as a result of Mr Tucker’s unlawful conduct. This led him to conclude that “the psychological damage to Ms Richardson, while not insignificant, was not debilitating in that it did not prevent Ms Richardson from working or pursuing her career”: see Richardson v Oracle (first instance) at [244]. This latter statement, including as to the effect of her injury on her working life, derived from the evidence adduced at trial. The finding arose directly from that evidence; and it was plainly open to the trial judge to make it. It was also plainly open to his Honour to regard it as relevant to the assessment of damages.
The trial judge did not “measure whether Ms Richardson’s psychological injury was ‘debilitating’ solely by reference to her ability to continue to work”, as the appellant at one point argued. The appellant’s contention that the trial judge failed to take into account that her quality of life had been compromised must be rejected. His Honour’s reasons for judgment show an awareness of the ‘quality of life’ considerations and that they were taken into account. Thus, his Honour specifically said (at [246]) that, in fixing the quantum of general damages, he took into account “the medical evidence… evaluated in the light of the findings of fact”, which he discussed in detail: see Richardson v Oracle (first instance) at [216] and following. His Honour accepted that Ms Richardson had suffered a chronic adjustment disorder with mixed features of anxiety and depression: see Richardson v Oracle (first instance) at [236]. There were also the other matters to which he referred, including her significant distress (especially as revealed in her counselling journal) and changes in her demeanour and physical condition: see Richardson v Oracle (first instance) at [209]-[213].
No error can be inferred from the fact that his Honour did not set out in detail all the myriad ways in which Ms Richardson’s quality of life had been impaired. In fact many of the ways that Ms Richardson’s life had been impaired were set out (as mentioned above). The obligation to give reasons did not require the trial judge to mention and analyse every aspect of the loss of quality of life that Ms Richardson suffered: it was enough that the basis for his decision was disclosed: see Pitcher v Langford (1991) 23 NSWLR 142 at 149-150 (Kirby P) citing Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 270 and 282. His Honour fulfilled this obligation. Bearing the above considerations in mind, Ground 18 is not made out.
Ground 19
Ground 19 was that the trial judge erred “by assessing general damages by reference to the nature of Mr Tucker’s unlawful conduct rather than by reference to the impact of that unlawful conduct on Ms Richardson”. The appellant contended that, in assessing general damages, the trial judge took into account Mr Tucker’s conduct, which was an irrelevant consideration, since the only basis for assessing general damages was by reference to the impact on her. In particular, at the hearing of the appeal, the appellant submitted that the trial judge’s comment that “Mr Tucker’s conduct was not accompanied by physical elements of sexual harassment” indicated that his Honour had taken into account an irrelevant consideration, since “the only question [was] what was Ms Richardson’s reaction and what [was] her loss and damage by reason of that conduct”. I consider that the appellant’s submissions involve a misreading of his Honour’s reasons.
At paragraph [244] of his reasons, the trial judge stated that:
Any assessment of damages in a case such as the present is bound to be a broad one, not involving any particularly scientific approach. The following matters, in particular, must be taken into account in the present case: Mr Tucker’s conduct was not accompanied by physical elements of sexual harassment which are a feature of some of the decided cases; it is only Mr Tucker’s conduct which is the foundation for an award of damages on the findings I have made; some attempt must be made to discount from Ms Richardson’s account of her feelings, and from the assessment made by the medical experts of her condition, matters which are not a response or reaction to Mr Tucker’s conduct; and, the psychological damage to Ms Richardson while not insignificant, was not debilitating in that it did not prevent Ms Richardson from working or pursuing her career.
There is no error discernible in this passage, or elsewhere in his Honour’s reasons, of the kind alleged by the appellant.
In the circumstances as found by the trial judge, s 46PO(4)(d) conferred a power to make an order for damages by way of compensation for the loss and damage suffered by Ms Richardson because of the unlawful conduct of Mr Tucker. It is true, as the appellant submitted, that s 46PO(4)(d) contemplated an award of compensatory damages for the loss sustained by the victim, but only in so far as it was caused by Mr Tucker’s unlawful conduct. There is no doubt that his Honour was fully cognisant of the necessarily compensatory nature of an award of damages under s 46PO(4)(d) because he repeatedly referred to the compensatory nature of an award of damages under this provision: see, for example, [207]-[208], [237]. Whilst it is true to say, as the appellant does, that the loss and damage attracting compensatory damages is the loss and damage suffered by her, it is equally true to say that the only loss and damage that can be the subject of an award of compensatory damages is that caused by Mr Tucker’s conduct. It was thus correct to say, as the trial judge did, that Mr Tucker’s conduct was the only “foundation for an award of damages on the findings … made”: see [244] of his Honour’s reasons, set out above. In assessing the measure of damages, the effect of Mr Tucker’s conduct on Ms Richardson was pivotal. In this sense it was relevant, as his Honour said, that “Mr Tucker’s conduct was not accompanied by physical elements of sexual harassment” since the absence of physically harassing conduct was capable of throwing light on the loss and damage suffered by his victim. It has been accepted elsewhere that the nature of the respondent’s conduct is relevant in this way (although, of course, not for the application of a limitation by reference to whether damage is “justifiable” by so-called “reasonable community standards and expectations”): see Hall v A & A Sheiban at 238 and 256 (Lockhart J and Wilcox J). When his Honour’s reasons are considered overall, it is tolerably clear that his Honour did not treat this consideration as relevant in any other impermissible way.
For the reasons stated, I can discern no error in his Honour’s decision of the kind alleged in ground 19.
Ground 19A
Ground 19A was that the trial judge had “erred in not finding that the contravening conduct affected Ms Richardson’s sexual relationship with her then partner, Mr Dunphy”. In relation to this ground, the appellant referred to Lockhart J’s observation in Hall v A & A Sheiban at 242 that “[o]nce the applicant’s account of her reaction is accepted, if it is accepted, then damages fall to be assessed having regard to that reaction …”. As Lockhart J went on to say (at 243), “[t]he relevant question is whether there was such a connection between the acts of sexual harassment and the failure of the [pre-existing] relationship”. In that case, error was found in the Commission’s finding because it was not “based on the evidence before it but based upon [its] perceptions of ordinary or normal human experience of human nature” (at 243). At the hearing of the appeal, the appellant submitted in substance that the trial judge’s treatment of her relationship with Mr Dunphy disclosed the same sort of error. In written submissions, the appellant challenged his Honour’s finding on the basis that it was “against the evidence and ordinary human experience”.
As noted above, the trial judge accepted that Ms Richardson was very distressed by Mr Tucker’s conduct and this distress was manifest in her suffering forms of physical and mental impairment, including an adjustment disorder. In this connection, his Honour referred to Ms Richardson’s own evidence, which was, so his Honour held, corroborated by the evidence constituted by her counselling journal and the evidence of her then partner, Mr Adrian Dunphy, her friends and a neighbour, Ms O’Toole: see Richardson v Oracle (first instance) at [212] and [213].
Having so concluded with respect to the distress suffered by Ms Richardson, his Honour went on to say (at [214]):
On the other hand, it is difficult to place as much weight on Ms Richardson’s complaints that her interpersonal relations with her partner, Mr Dunphy, were affected in various ways. There are always a variety of factors operating in any relationship and it is often not possible to be confident about the necessary causal relationship. I am not able to reach the necessary confidence about that matter in this case.
Whilst it may be said that his Honour dealt with this point briefly, this of itself does not indicate error. It must be borne in mind that his Honour dealt with the point only after he had discussed and accepted the other non-medical evidence concerning her distress; and that he went on to discuss and assess the medical evidence in detail. Further, this was not an instance where, as in Hall A & A Sheiban at 243, this part of Ms Richardson’s case was expressly rejected by reference to ordinary human experience. Rather, this part of her case was rejected because, in his Honour’s view, the evidence did not establish the requisite causal connection that Ms Richardson alleged. It is in this context that his Honour’s reference to “a variety of factors” must be understood.
The evidence as to the sexual relationship between Ms Richardson and Mr Dunphy was relatively slight compared with that relating to other loss and damage suffered by Ms Richardson. Ms Richardson and Mr Dunphy gave evidence and were cross-examined about their relationship. Their evidence was that they entered into a close relationship in late 2007, some several months before Mr Tucker’s unlawful conduct began. Mr Dunphy’s evidence was that he noticed a change in their relationship “when Rebecca indicated to me that she was having trouble at work” in the sense her personality changed including “sexually and also just our closeness”. His evidence at the trial on 26 March 2012 was that the relationship had not improved since then. As Mr Dunphy explained in examination in chief:
Rebecca became withdrawn. She was anxious, and when these incidences started, in the timeframe your Honour is talking about, our socialising, our very, you know, intimacy between ourselves did change.
He confirmed that his reference to intimacy was a reference to his and Ms Richardson’s sexual relationship and their “closeness” was the connected physical intimacy they have previously enjoyed. He explained that:
[W]hen Rebecca explained to me that there was someone that was making comments to her of a sexual nature, it changed the dynamic. We were – she was hesitant.
Ms Richardson also gave evidence in chief of a marked change in the frequency with which she and Mr Dunphy had sex in the period after April 2008 until the time of the trial, March 2012. In cross-examination, she accepted that “there’s a difference here in this relationship with Adrian in that you are in a partnership with a child” but she repudiated the suggestion that the child had in this case “ever been of detriment to my relationship with Adrian”. It was clear at trial that Mr Dunphy’s child had been a feature of the couple’s relationship for its duration, including, relevantly before the marked change in April 2008. There was no relevant expert medical or psychological evidence adduced on this issue, although I note that such evidence is not routinely required: see Walker v Citigroup Global Markets Australia Pty Ltd (2006) 233 ALR 687 (“Walker v Citigroup”); Crellin v Kent [2000] VSCA 165 at [15]-[17].
The trial judge was not obliged to accept the evidence of Ms Richardson and Mr Dunphy on the issue. In this context, it may be recalled that the trial judge preferred Ms Richardson’s evidence to Mr Tucker’s concerning the eleven incidents of sexual harassment, but did not accept her evidence about all matters in issue. For example, his Honour “rejected significant elements of Ms Richardson’s assertions” about Oracle’s investigation and treatment of her and her future prospects there: see, for example, Richardson v Oracle (first instance) at [74], [169], [221]. Such rejections were not, importantly, on credit grounds, but rather because, for example “Ms Richardson insufficiently appreciated the factors that were necessarily in play” within Oracle HR ([at 169]). In keeping with his Honour’s generally considered approach, which involved assessing the reliability of the evidence of all witnesses, including Ms Richardson, on an issue by issue approach, his Honour apparently considered Ms Richardson’s and Mr Dunphy’s evidence about their relationship.
As a result, his Honour did not accept that their evidence established to the requisite standard that Mr Tucker’s unlawful conduct caused Ms Richardson’s and Mr Dunphy’s sexual relationship to deteriorate. In evaluating their evidence, his Honour presumably had regard to various salient matters, perhaps including the duration of the relationship as at April 2008, Ms Richardson’s work-related absences from home and the other matters referred to in cross-examination, which were summed up in his Honour’s reference to a “variety of factors”. I accept that as counsel for Oracle, Mr Fernon, said “on that small part of the case, [his Honour was] not able to reach the necessary level of confidence about the matter”.
Even in an appeal such as this, by way of rehearing, an allowance must be made for the fact that the trial judge has advantages not shared by the appellate court: see Fox v Percy (2003) 214 CLR 118 (“Fox v Percy”) at 124-129 [20]-[31], 138-139 [65]-[67]. As the joint judgment stated in Fox v Percy (at 125-126 [23]):
On the one hand, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance”. On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
(Citations omitted)
Leaving aside the particular considerations regarding factual findings based on credit, whilst the appellate court must make up its own mind on the facts, the court does not proceed as if it were trying the case at first instance. There is a need for the appellant to show error on the appeal, since the task of the appellate court is to correct such error: see also Knight v Beyond Properties Pty Ltd (2007) 242 ALR 586 at 590-591 [20] (French, Tamberlin and Rares JJ). In determining whether there is error, the appellate court must take into account and weigh the advantages held by the trial judge: see Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 (“Branir”) at 437 [28].
On this ground of appeal, the relevant evidence in chief and cross-examination was not, as the appellant accepted, overwhelmingly detailed or long-running. The Court has been taken to the parts of the transcript said to bear on the issue of Ms Richardson’s relationship with Mr Dunphy. Plainly enough the trial judge had the advantage of hearing all the evidence, including that of Ms Richardson and Mr Dunphy. I acknowledge both that this advantage is “subtle and imprecise, yet real” (Branir at 437 [28]) and that, as stated in Branir at 437 [28], “if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge”.
In my view, however, in this instance the choice between the conclusion the trial judge came to, and my own conclusion, is not “equally open”. Neither is it a circumstance where this Court has merely “a preference … for some fact or facts” over those preferred by the trial judge. In the circumstances of this case, there was no real basis disclosed, either in the evidence to which the Court was referred or in the trial judge’s reasons, for his Honour’s lack of satisfaction as to the causal connection between Mr Tucker’s sexual harassment of Ms Richardson and the significant decline in sexual intimacy between her and her partner. I consider that there was error of the kind alleged in ground 19A.
I reach this conclusion notwithstanding any advantage the trial judge may have had to assess the evidence. This is particularly because the evidence was discrete. Mr Dunphy and Ms Richardson’s evidence about their relationship was consistent and corroborative of one another’s account. The reliability of their evidence was unaffected by any matter of credit; and their cross-examination revealed no factor that would justify a different conclusion from the one I would reach.
Further, the brevity and generality of his Honour’s reasons on this discrete and relatively simple point makes it virtually impossible to discern and appreciate what may have been the basis for his Honour’s contrary conclusion. It appears from what his Honour did say (at [214]) that he accepted that their sexual relationship had diminished, but we know only that his Honour was unconvinced of the existence of the requisite causal connection, perhaps because he accepted that “a variety of factors were operating” on the couple’s sexual relationship (as to which, see further below). Although his Honour referred to the possibility that a “variety of factors” may have impinged on this relationship, nothing in his Honour’s reasons, read by themselves or in conjunction with the evidence, identifies the particular factors his Honour had in mind when he said that he did not have “the necessary confidence” that a cause of this diminished relationship was Mr Tucker’s sexual harassment. As already indicated, a number of factors were put to Ms Richardson and Mr Dunphy in cross-examination as alternate or combined causes of the change in their sexual relationship, which were mostly repudiated by them; but his Honour’s reasons for judgment do not identify one or other of these as so persuasive that he was unable to accept the witnesses’ evidence.
The gist of the evidence of Ms Richardson and Mr Dunphy was that Mr Tucker’s sexual harassment was a cause of their diminished sexual relationship. Mr Dunphy’s evidence that Ms Richardson’s anxiety, the existence of which was subsequently diagnosed and accepted, led to a reticence on both their parts to engage in sexual intimacy with one another and his evidence that there was a “change in the dynamic” sexually because of the sexual nature of Mr Tucker’s harassment is particularly telling. This evidence establishes that Mr Tucker’s sexual harassment of Ms Richardson was a cause of their diminished sexual intimacy. It may also indicate that Ms Richardson’s behaviour in this regard was but another manifestation of the psychological injury she sustained because of his misconduct.
In cross-examination, it was put to Ms Richardson that her work travel, distress from factors other than the harassment (such as the litigation itself) and Mr Dunphy’s child should be accepted as the factors affecting the sexual dynamic between her and Mr Dunphy. The same factors were put to Mr Dunphy in cross-examination, as well as the proposition that Ms Richardson’s alleged increase in colds and illness may have also dampened their sex life. His responses were consistent with his original evidence. So far as I can discern there was no evidence that these “other” factors were relevantly active in their relationship; Ms Richardson and Mr Dunphy’s responses largely discounted them. There was no direct challenge to their evidence that Mr Tucker’s sexual harassment harmed Ms Richardson’s sexual relationship with her partner. In my view, even if the trial judge thought that these “other factors” might have loomed as possible influences on the relationship, this possibility could not contradict the clear evidence of Ms Richardson and Mr Dunphy that Mr Tucker’s sexual harassment was a cause of Ms Richardson’s diminished sexual relationship with Mr Dunphy. Further, in my view, these other factors were not sufficiently disclosed or pursued by the respondent to establish that they were the factors active in the loss she suffered, such that they might make this loss referrable to some other act or acts entirely for which Oracle is not vicariously liable: see Henville v Walker (2001) 206 CLR 459 (“Henville v Walker”) at 483 [70] per Gaudron J; 510 [166] per Hayne J. It was not enough to raise the possibility of other explanations in the face of Ms Richardson and Mr Dunphy’s evidence of their own relationship dynamics.
Further, quite apart from the appellant’s suggested application of Hall v A & A Sheiban, there is likely error in an approach which concludes without further analysis that the presence of multiple factors giving rise to a specific form of loss or damage will bar a victim of sexual harassment from recouping compensation for the part which the contravening conduct played in that loss. That discriminatory conduct which contributed (but was not the sole contributor) to the onset of injury is a loss “suffered because of the conduct of the respondent” was accepted without question by French and Jacobson JJ in Qantas Airways Ltd v Gama at [99] in the course of applying s 46PO of the AHRC Act. Such an acceptance reflects the remedial nature of s 46PO(4)(d). In reflecting on s 82(1) of the Trade Practices Act 1974 (Cth), which was in its terms relevantly indistinguishable from s 46PO(4)(d), Hayne J explained in Henville v Walker at 509 [163] :
[S]eldom, if ever, will contravening conduct be the sole cause of a person suffering loss. Other factors will always be capable of identification as a cause of their loss … What the Act directs attention to is whether the contravening conduct was a cause. It does not require, or permit, the attribution of some qualification such as “solely” or “principally” to the word “by”.
(Emphasis in original)
(See also Henville v Walker at 482-483 [68]-[72] (Gaudron J).)
In I & L Securities Pty Ltd v HTW Valuers at 130 [62] Gaudron, Gummow and Hayne JJ elaborated that:
As was recognised in Henville v Walker there may be cases where it will be possible to say that some of the damage suffered by a person following the contravention of the Act was not caused by the contravention. But because the relevant question is whether the contravention was a cause of (in the sense of materially contributed to) the loss, cases in which it will be necessary and appropriate to divide up the loss that has been suffered and attribute parts of the loss to particular causative events are likely to be rare. Further it is only in a case where it is found that the alleged contravention did not materially contribute to some part of the loss claimed that it will be useful to speak of what caused that separate part of the loss as being “independent” of the contravention.
(Emphasis in original)
It is not clear, in large part because of the brevity of his Honour’s reasons, whether his Honour intended to reject the appellant’s claimed loss because it was, in his view, caused by a variety of factors (of which the contravening conduct was one). To the extent this reasoning featured in the trial judge’s analysis, it was in error.
For the above reasons, ground 19A is made out.
Ground 20
Ground 20 was that the trial judge “erred by awarding manifestly inadequate general damages to Ms Richardson”. As already noted, the trial judge awarded Ms Richardson $18,000 by way of general damages as compensation for the non-economic loss she sustained because of Mr Tucker’s sexual harassment of her. By ground 20, Ms Richardson challenged this amount, inviting the Court to find relevant error in the trial judge’s exercise of discretion in fixing that figure and to fix a higher amount.
It must be clear by now that the trial judge accepted that Mr Tucker’s unlawful conduct caused Ms Richardson both physical and psychological damage: see Richardson v Oracle (first instance) at [4], [149], [209], [236]. Mr Tucker’s conduct occasioned her distress that was manifest in a noticeable change in her demeanour and in significant physical symptoms. His conduct also caused her psychological injury: she suffered a chronic adjustment disorder with mixed features of anxiety and depression: see Richardson v Oracle (first instance) at [236]. This psychological damage was “not insignificant”: see Richardson v Oracle (first instance) at [244].
In discussing her distress, the trial judge specifically said (at [209]-[213]):
I am satisfied that Mr Tucker’s conduct, over a period of some months, was very distressing for Ms Richardson, who did her best to deal with it alone for some considerable time. Her partner, friends and acquaintances noticed changes in her demeanour. Ms Richardson noticed changes in her own physical condition, including the management of her diabetes, which seemed to her attributable to her heightened feelings of stress and anxiety. There was no medical evidence to make this connection directly but I am prepared to take into account Ms Richardson’s own observations of her psychological and physical responses as being consistent with the medical evidence …
Even though her decline appears to have been apparent to others, it was not until Ms Richardson was confronted with unmistakeable evidence that she was no longer able to manage the situation on her own or control her responses to Mr Tucker’s behaviour that she decided to make a complaint about Mr Tucker’s conduct. In that sense I am satisfied that she was driven to take that step.
I am satisfied that Mr Tucker’s conduct was cruel and calculated, but he may not have fully appreciated the effect it was having on Ms Richardson. I think it is equally likely that Ms Richardson managed to disguise her reactions sufficiently that Mr Tucker simply settled into a systematic form of humiliation and sexually charged aggression as his normal mode of interacting with her. He should be given no credit for his lack of insight. The maintenance, over an extended period of time, of the conduct which the evidence disclosed in this case deserves censure in a way which makes clear that it was unacceptable and unlawful. It was a clear breach of Ms Richardson’s legal rights.
Some of the picture of Ms Richardson’s distress is revealed by her counselling journal, which I regard as a sufficiently reliable contemporaneous record for this purpose. …
Ms Richardson’s account is sufficiently supported by the evidence of her partner, some friends and her neighbour, Ms O’Toole, who provided her direct observations of changes in Ms Richardson’s demeanour corresponding to the time of the events in question.
An appellate court ought not interfere with the sum of general damages fixed by a trial judge simply because it considers it would have fixed some other amount: see Smith’s Newspapers Ltd v Becker (1932) 47 CLR 279 at 300 (Dixon J); Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 (“Precision Plastics v Demir”) at 369 (Gibbs J); Wilson v Peisley (1975) 7 ALR 571 (“Wilson v Peisley”) at 585 (Mason J); and Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 (“Rogers v Nationwide News”) at 348-349 [62]-[66] (Hayne J). Before this Court can interfere with the award made by the trial judge, the Court must consider either that the judge acted on an error of principle, misapprehended the facts, allowed extraneous matters to affect the assessment, failed to take account of a material consideration, or that “the judge has made a wholly erroneous estimate of the damages suffered”: see House v The King (1936) 55 CLR 499 at 504-505 and Precision Plastics v Demir at 369. Ground 20 is directed to this last-mentioned matter. That is, a contention that an award of damages is “manifestly inadequate” “invokes the last of the bases for appellate review of an exercise of discretion identified in House v The King”: compare Rogers v Nationwide News at 348 [62].
To adapt the language of Hayne J in Rogers v Nationwide News at 348 [62] and [64] (who was speaking of “manifest excess”):
If manifest [inadequacy] is alleged, it is not said that a specific error of principle or fact can be identified. Rather, the contention that damages are manifestly [inadequate] alleges that the result at which the primary judge arrived is evidently wrong and that, although the nature of the error made may not be discoverable, there must have been a failure to properly exercise the discretion in fixing the amount to be awarded.
…
It is important to emphasise, however, that the task of an appellate court asked to set aside an award of damages as manifestly [inadequate] is not simply mathematical. The appellate court does not begin by identifying the damages which it would have allowed and then, applying some margin for difference of view, observe the mathematical relationship between the award made and the figure it would have awarded. Rather, the question for the appellate court is whether the result at which the trial judge arrived bespeaks error. What must be identified is manifest [inadequacy], not just [inadequacy].
(Emphasis in original)
Oracle submitted that “[t]he Federal discrimination law cases reveal that the monetary award [made by the trial judge] was well within the permissible range” and that “[m]onetary awards for general damages arising from sexual harassment are ordinarily within the range between $12,000 and $20,000”. In this connection, the Court was referred to numerous cases, including Elliot v Nanda (2001) 111 FCR 240 (award of $15,000 as general damages; $5,000 as aggravated damages), Leslie v Graham [2002] FCA 32 (award of $16,000), Kraus v Menzie [2012] FCA 3 (award of $12,000; appeal dismissed in Kraus v Menzie [2012] FCAFC 144). These cases were said to be illustrative of the “permissible range” within which the trial judge set Ms Richardson’s general damages award. It was on this basis that, citing Wilson v Peisley at 585, Oracle submitted that “[t]he general damages awarded in this case were not so inordinately low as to be a wholly erroneous estimate of the damage suffered” (emphasis original).
Further, Oracle sought to distinguish Ms Richardson’s case from the few sexual harassment cases in which damages were awarded outside this range such as Lee v Smith [2007] FMCA 59 (“Lee v Smith”) where a general damages award of $100,000 was made and Poniatowska v Hickinbotham [2009] FCA 680 (“Poniatowska v Hickinbotham”) where a general damages award of $90,000 was made. The Court’s attention was drawn to differences in the nature of the conduct in these two cases and in the nature of the injuries sustained by the victims because of this conduct. Ms Lee was subjected to months of sexual propositioning and other unlawful conduct which culminated in a sexual assault, whilst Ms Poniatowska was subject to sexual propositioning, inappropriate comments by her supervisor and the receipt of explicit pornographic messages on her telephone from a co-worker. Ms Lee was found to have suffered “very significant pain, suffering, hurt and humiliation” over the five or six years before trial, had been deprived of the enjoyment of life, had been unable to work, suffered fear and had been at times suicidal: see Lee v Smith at [215]. At the time of the award, Ms Poniatowska remained incapacitated for work by her psychiatric illness; with years of considerable personal distress and unhappiness caused by her underlying psychiatric condition (an adjustment disorder with mixed anxiety and depression) brought on by the sexual harassment: see Poniatowska v Hickinbotham at [350]-[351]. I accept that in both these cases the victims sustained more severe injuries than Ms Richardson did in this case.
Oracle argued the appellant’s reliance on the awards of damages in “different areas of the law” including in defamation cases (such as Crampton v Nugawela (1996) 41 NSWLR 176, New South Wales Aboriginal Land Council v Perkins (1998) 45 NSWLR 340, Rogers v Nationwide News, John Fairfax Publications Pty Ltd v O’Shane (No 2) [2005] NSWCA 291, Obeid v John Fairfax PublicationsPty Ltd [2006] NSWSC 1059 and McGaw v Channel Seven Sydney Pty Ltd [2006] NSWSC 1147) were ill-suited to the question whether the damages awarded in this case, in the Federal discrimination context, were manifestly excessive. As will be seen hereafter, I do not entirely accept this submission.
For the reasons set out below, I consider ground 20 to be made out in this case: whether or not the award of damages in the sum of $18,000 is manifestly inadequate is not to be determined here by reference to some previously accepted ‘range’ in sexual harassment cases. For the reasons stated below, I consider that, having regard to the nature and extent of Ms Richardson’s injuries and prevailing community standards, the low level of the damages awarded by the trial judge itself bespeaks error.
As Hayne J indicated in Rogers v Nationwide News at 348 [63], cases in which an award of damages is challenged as ‘manifestly inadequate’ or ‘manifestly excessive’ assume that there is a standard against which inadequacy or excess can be judged. In the context of an award of damages for defamation, his Honour said (at 349 [66]):
In searching for the standard … account must be taken of three basic propositions. First, damage to reputation is not a commodity having a market value. Reputation and money are in that sense incommensurable. Secondly, comparisons between awards for defamation are difficult. Every defamation, and every award for damages for defamation, is necessarily unique. Thirdly, because the available remedy is damages, courts can and must have regard to what is allowed as damages for other kinds of non-pecuniary injury.
In searching for the standard against which to measure the ‘manifest inadequacy’ of an award of damages for sexual harassment, the same, or similar, matters must be taken into account. Pain and suffering, hurt and humiliation and, more generally, the deprivation of the enjoyment of life have no market value: pain and suffering and money are “in this sense incommensurable”: compare Rogers v Nationwide News at 349 [66]. Comparisons between sexual harassment cases are not straightforward; and since the remedy with which the court is concerned is damages, it is appropriate and necessary to have regard to the damages allowed for other kinds of analogous non-pecuniary injury. As explained hereafter, this latter matter is especially important when considering damages for sexual harassment.
It is important to note at the outset that damages for sexual discrimination (which includes sexual harassment), have only been available in federal law for around thirty years. This is a comparatively short period in the history of our law. The early decisions as to general damages to be awarded in sexual harassment cases indicate a degree of uncertainty and difficulty in fixing the appropriate amount. This can be seen in the caution evident in Hall v A & A Sheiban, which substantially adopted the approach in Alexander v Home Office [1988] 1 WLR 968; [1988] 2 All ER 118 (“Alexander v Home Officer”) – an English race discrimination case. Thus, in Hall v A & A Sheiban (at 256), in the context of sexual harassment damages, Wilcox J cited with approval the reasoning of May LJ in Alexander v Home Office, who explained at 122:
As with any other awards of damages, the objective of an award for unlawful racial discrimination is restitution. Where the discrimination has caused actual pecuniary loss, such as the refusal of a job, then the damages referrable to this can be readily calculated. For the injury to feelings however, for the humiliation, for the insult, it is impossible to say what is restitution and the answer must depend on the experience and good sense of the judge and his assessors. Awards should not be minimal, because this would tend to trivialise or diminish respect for the public policy to which the Act gives effect. On the other hand, just because it is impossible to assess the monetary value of injured feelings, awards should be restrained. To award sums which are generally felt to be excessive does almost as much harm to the policy and the results which it seeks to achieve as do nominal awards. Further, injury to feelings, which is likely to be of relatively short duration, is less serious than physical injury to the body or the mind which may persist for months, in many cases for life.
(Emphasis added)
Academic commentators have also remarked on the difficulty initially faced by courts and tribunals in fixing amounts for general damages for sexual harassment and the courts’ cautious approach: see, for example, Margaret Thornton, The Liberal Promise: Anti-Discrimination Legislation in Australia (Oxford University Press, 1990) at 197-198; Carol Andrades in What Price Dignity? Remedies in Australian Anti-Discrimination Law, Parliamentary Research Paper No 13 (1998) (“Parliamentary Research Paper No 13”); and see also State of NSW (NSW Police Force) v Whitfield (EOD) [2012] NSWADTAP 27 at [102]-[103].
The apparent result of this initial uncertainty was that the range of awards for general damages in cases of the present kind was fixed at a conservative level. This phenomenon is the subject of extensive academic analysis: see, for example, Andrades, Parliamentary Research Paper No 13; and Chris Ronalds, “Opening Address III” in Margaret Thornton (ed) Sex Discrimination in Uncertain Times (ANU E Press, 2010) 17 at 21.
The perception that awards for general damages in cases of sex discrimination and harassment are generally low has led academic commentators to opine that “the courts have not accorded much weight or significance to the emotional loss and turmoil to an applicant occasioned by acts of unlawful discrimination and harassment”: see Chris Ronalds and Elizabeth Raper in Discrimination Law and Practice (Federation Press, 4th ed, 2012) (“Ronalds and Raper”) at 216; see also Parliamentary Research Paper No 13; Beth Gaze, “The Sex Discrimination Act After Twenty Years” (2004) 27(3) University of New South Wales Law Journal 914 at 919; and Senate Standing Committee on Legal and Constitutional Affairs, Report on Effectiveness of the Sex Discrimination Act 1984 in eliminating discrimination and promoting gender equality (Senate Printing Unit, 2008) at 81-83.
The starting point in the analysis is the period between the making of the formal complaint on 17 November 2008 and the completion of the investigation on or about 11 December 2008. In this period, the trial judge found that Ms Richardson began considering her future employment with Oracle because she considered that she would be stigmatised for having made a complaint and she was losing confidence in Oracle. She began making inquiries about the state of the jobs market in the IT field in November 2008 after she had made her complaint, and she made at least one unsuccessful job application at about this time. A friend and neighbour of Ms Richardson, Ms Ann O’Toole, gave evidence (which, as far as we can see, was not rejected by the trial judge) that Ms Richardson indicated to her, after November 2008, that “she made a decision that she would probably have to leave the company, that she didn’t have any future with them”. Subject to a consideration of what happened following this, this is powerful evidence in Ms Richardson’s favour. It supports a conclusion that Mr Tucker’s unlawful conduct was a material cause of her decision to leave Oracle.
There was a meeting on 17 December 2008 between Ms Richardson, Ms Amanda Swan, who was Ms Richardson’s direct manager in late 2008 and was based in Sydney, and Ms Edweena Stratton, who was the Senior Director of Human Resources for Oracle in Australia and New Zealand and who was also based in Sydney. By this time, Mr Tucker had been given his first and final warning and his manager once removed had decided that he would continue in his role on the ANZ Bank project, which the trial judge described as a key role. Ms Richardson wished to be and was off the ANZ Bank project.
The trial judge accepted the evidence of Ms Swan on a number of matters and he found that before this time Ms Richardson and Ms Swan had enjoyed a mutual regard and a friendly working relationship. He found that Ms Swan had a genuine concern for Ms Richardson’s welfare.
We come at this point in the narrative to one of the key issues concerning Ms Richardson’s contention that she was demoted. Ms Richardson’s case was that she did not want to work with Mr Tucker, but that Oracle went further than that and removed her from any projects in Victoria. Ms Richardson’s case was that Oracle’s major projects were in Victoria. Oracle’s case was that Ms Richardson went further than indicating that she did not want to work with Mr Tucker and made it clear that she wished to avoid any further contact with him in any form, even by way of an accidental encounter. It was in that context, according to Oracle, that Ms Swan said at the meeting on 17 December 2008 that it would be better for Ms Richardson not to go to the Melbourne office at all.
The trial judge accepted Oracle’s case and he preferred the evidence of Ms Swan and Ms Stratton over that of Ms Richardson. Furthermore, he rejected Ms Richardson’s evidence that she complained about a reduction of her responsibilities at the meeting on 17 December 2008. He also accepted that Ms Swan had raised with Ms Richardson the possibility of her working on a project in Melbourne involving Fosters whereby she would not go to Oracle’s office in Melbourne, but rather would go straight to the customer’s office. He also accepted that Ms Swan, at about this time, raised with Ms Richardson the possibility of her being involved in an “architecture initiative”.
Ms Richardson submits that the trial judge erred in accepting Ms Swan’s evidence and that this was a case where, despite the fact that he had had the advantage of seeing and hearing the witnesses, he had acted contrary to compelling inferences. In our opinion, the evidence falls a long way short of establishing Ms Richardson’s proposition. In support of her submission, Ms Richardson relies on the following matters. First, she submits that Ms Swan’s evidence was vague and general and not supported by notes made at the time. That did not preclude the trial judge from accepting it, particularly as it was supported in material respects by Ms Stratton’s evidence. Secondly, she submits that there was evidence that she had said to others no more than that she did not want to work with Mr Tucker. However, that is not inconsistent with a finding that she had conveyed what the trial judge described as a stronger impression to Ms Swan, that she wished to avoid any further contact with Mr Tucker in any form, even by way of an accidental encounter. Thirdly, she relies on the objective circumstances. We turn now to consider those objective circumstances.
A number of objective circumstances, in fact, support the trial judge’s conclusion that Ms Richardson was not demoted. First, as at 19 December 2008, Ms Richardson was not working on any Victorian projects, nor had any future Victorian projects been identified to which she would be assigned. Secondly, Ms Swan had raised with her the Victorian project involving Fosters where she might go straight to the customer’s office rather than Oracle’s office in Melbourne. Thirdly, the trial judge found that the “architecture initiative” was not a minor project and that it was being sponsored and developed at a high level within Oracle. Significantly, there was a proposal in early December 2008 that Ms Richardson be involved in the project in a senior capacity. Fourthly, Ms Richardson acted in Ms Swan’s role in January 2009 when Ms Swan was on leave. Fifthly, Ms Richardson met Ms Swan on 29 January 2009 for a performance review and at no time during the review did she suggest that she was under‑utilised, unhappy with the allocation of her responsibilities, or felt that her responsibilities had been reduced.
As against these matters, Ms Richardson contends that the evidence establishes that in January and February 2009 she was put on special projects, was under‑utilised and, at times, had no work to do. Furthermore, she contends that projects were allocated to an Oracle employee who was junior to her. The trial judge rejected these allegations. His conclusions were attacked by Ms Richardson by reference to a number of rather general documents about the flow of work into Oracle and Ms Richardson’s involvement in them. We reject these challenges because the trial judge’s findings were clearly open to him. Even if there was a lag in Ms Richardson’s flow of work, we entirely agree with the trial judge’s observation that Ms Richardson did not allow much time for things to settle down.
In our opinion, the trial judge was correct to find that Ms Richardson had not been demoted as a matter of objective fact.
The trial judge traced events in January, February, March and April 2009, including Ms Richardson’s contact with representatives of EMC. It is not necessary for us to detail those matters. Ms Richardson resigned from Oracle by letter dated 5 March 2009 and, after working out her period of notice, left Oracle on 3 April 2009.
The trial judge found that Ms Richardson had left Oracle for reasons of her own. He said, in the context of Ms Richardson’s claim that Oracle had repudiated her contract of employment, the following (at [90]):
Although Ms Stratton’s letter was presumably written with a view to the protection of Oracle’s interests, I do not regard the request that Ms Richardson reconsider her decision as an insincere one. This exchange of correspondence was followed by a meeting attended by Ms Richardson, Ms Stratton and Ms Swan on 9 March 2009. Ms Richardson was asked again by Ms Stratton to reconsider her decision but Ms Richardson declined. This, in my view, is a further reason why Oracle may not be held responsible for Ms Richardson’s decision to leave her employment with Oracle. The reality is that Ms Richardson had decided to go for reasons of her own. Those reasons do not match the suggestion that her career had been damaged, much less that Oracle had repudiated her contract of employment. Although I think there is a case that Oracle’s response during the investigative process may have failed Ms Richardson in certain respects, that did not amount to repudiation of Ms Richardson’s ongoing employment relationship with Oracle, nor repudiation of her contract of employment.
The trial judge said that Ms Richardson had not established that her alleged economic loss was suffered “because of” Mr Tucker’s conduct and he said that the necessary causal link was not established. He went on to say the following (at [249], [250]):
In my view, this part of Ms Richardson’s case was largely misconceived. In my view, Ms Richardson left her employment with Oracle essentially because it suited her to do so in the circumstances at the time. She resigned. She was not constructively dismissed. Although she commenced steps to find other employment (not just at EMC) she did not actually resign until she was confident she was to receive an offer of employment. What was her loss at that stage? I am satisfied she was not demoted. There was no evidence at all that her remuneration at Oracle was or would have been reduced. There was no evidence that her promotion prospects were or would have been reduced.
It was contended that it was sufficient to find that Ms Richardson’s own motivation for leaving Oracle lay ultimately in Mr Tucker’s conduct and Oracle’s inadequate response to her complaints about it. I have rejected elements of these allegations on the evidence. I do not accept that Ms Richardson’s subjective motivation establishes a relevant foundation for damages. Even if it did she would be obliged to mitigate her loss, which she did very effectively.
With respect, we think that the trial judge erred in not finding the necessary causal link between Mr Tucker’s unlawful conduct and Ms Richardson’s decision to leave Oracle. We have reached that conclusion because of the combination of three matters.
First, there is the evidence referred to above (at [190]) that Ms Richardson began considering her future employment with Oracle in November 2008 and the steps she took at that time to secure alternative employment. The timing of these activities means that they could only have been taken because of Mr Tucker’s unlawful conduct.
Secondly, in the context of addressing Ms Richardson’s adjustment disorder, Dr Klug said that Ms Richardson adjusted to the situation “very quickly” by finding an alternative job. That evidence was referred to by the trial judge in another context, but we think it was an important matter to bring to account on the issue of causation.
Thirdly, we think to say, as the trial judge did, that Ms Richardson’s subjective motivation does not establish a relevant foundation for damages is not to bring to full account Ms Richardson’s understanding of the circumstances and the circumstances as they actually existed. Ms Richardson saw a counsellor at Ms Sampayo’s suggestion. The counsellor suggested to Ms Richardson that she keep a journal recording events and her feelings, which she did. The journal was part of the evidence before the trial judge. He found that it was not kept to be used in later proceedings. At the same time, he found that it was not a completely accurate historical account of events. It was, however, a substantially correct account of Ms Richardson’s feelings and physical symptoms. The journal clearly reveals that Ms Richardson considered that there had been a diminishment of her responsibilities and that Oracle was trying to push her out. It also reveals her lack of trust in Oracle. Although the trial judge found that Ms Richardson had not been demoted and that she had not allowed much time for things to settle down (and we would not interfere with those findings), the fact is that, on any view, there were substantial changes in her working arrangements at Oracle in late December 2008, and January and February 2009. In these circumstances, we think Ms Richardson’s subjective motivation, qualified by the objective circumstances, was relevant to whether a causal link between Mr Tucker’s unlawful conduct and Ms Richardson’s decision to leave Oracle, and the resulting economic loss, was established.
Medlin makes it clear that the question is one of reasonableness as between plaintiff and the defendant. In light of that, we think the three matters we have identified, when combined, were sufficient to establish causation between Mr Tucker’s unlawful conduct and Ms Richardson’s decision to leave Oracle and the resulting economic loss.
DAMAGES FOR ECONOMIC LOSS AND DAMAGE (GROUNDS 21-24)
The trial judge regarded Ms Richardson’s claims for economic loss occasioned by reason of her change in employment as “largely misconceived” (at [249]). His Honour nevertheless gave some attention to what her economic loss would have been if she had established an entitlement to it. The trial judge reasoned that at the time she left Oracle on 5 March 2009, her salary had been $150,000 and her new salary at EMC was $140,000. That salary was increased to $150,000 in 2012. His Honour concluded that her loss would have been $10,000 per year for the period between 2009 (when she started with EMC) and 2012 when her salary at EMC reached what her salary had been at Oracle. His Honour accepted that Ms Richardson had a discretionary entitlement to bonuses at both firms. The trial judge rejected Oracle’s argument that when one took into account the bonuses in fact paid at EMC she appeared to be in a better position than she had been at Oracle on the basis that this was speculative. His Honour also rejected Ms Richardson’s argument that her entitlement to bonuses at Oracle was likely to be more valuable in the future on the same basis.
Ms Richardson pursued four grounds of appeal in relation to these conclusions (Grounds 21-24).
Ground 21
Ground 21 was that the Court had erred by finding that there was no evidence that Ms Richardson would not do as well in her career with her new employer as she would have done at Oracle. The trial judge made a finding to this effect at [102]:
Ms Richardson did well at EMC. Although she commenced with a lower base salary ($140,000 rather than $150,000) she made up that shortfall by 2012. She achieved on average higher actual bonuses at EMC, compared to Oracle, also doing better on average than her target of 25% of base salary. The suggestion that her promotion prospects were less at EMC than at Oracle was based on the argument that EMC was a smaller company than Oracle and that the division in which Ms Richardson worked at EMC was not the core of EMC’s business. There was no evidence, however, that over the time frames suggested (four to five years and then seven years) Ms Richardson would not do as well at EMC as she might at Oracle. The only certainty was that for a period of about three years her base salary was lower.
That statement must be read, however, in the light of paragraphs 99-101 where the trial judge set out in detail Ms Richardson’s case on this issue:
99.Ms Richardson also sought the calculation of compensation or damages upon the basis that (as expressed in final written submissions) she might have expected a promotion at Oracle within four to five years, and a further promotion within a further seven years, each opening up the prospect of bonuses higher than 25% of base salary. By contrast, it was argued “it is likely to take a longer period of time for Ms Richardson to be promoted at EMC”. The comparison thus offered is delightfully vague.
100.I accept that Ms Richardson was a valued employee at Oracle, although she appeared to occupy a unique role which was created specially for her. Her role at Oracle involved no direct supervision of staff. Hers was, therefore, a role which turned particularly on the quality of her individual contribution, about which to that point there had been no doubt. Ms Richardson had in fact been promoted about every two years to that point in Oracle and, notwithstanding that hers was not a fully billable role, had managed to earn bonuses consistently at just under her target level of 25% after being promoted to the IC4 level. Ms Richardson accepted that, at the level she had reached, opportunities for promotion would be fewer. She would have had to assume responsibilities which went beyond her experience to that point, including direct supervision of other staff. Just as an example, Ms Swan who was at a higher relative level (effectively one above Ms Richardson) waited eight years for a promotion from that level. By contrast with Ms Richardson’s assumptions, Ms Swan, who appears to have been successful in her own right, did not achieve target bonus at her level. Inevitably, there is a large element of speculation in Ms Richardson’s claims. The evidence to support them was largely historical, from which extrapolations were attempted on the basis of some presumption that things would go on as before. But there were obvious difficulties in the analysis.
101.Ordinary base salaries at Oracle moved in response to a range of factors, including economic factors well abroad of Australia. Some years there was no increase, except for very special cases. That was the case in 2008 and 2009. Bonuses were discretionary and depended on a variety of discretions and allocations, themselves based initially on Oracle’s global fortunes. Support from the historical position was obviously subject to the uncertainties of future economic cycles worldwide. No attempt was made to deal with these matters at any real level of rigour except for mathematical extrapolation from variously calculated averages.
When read in that full context we would not read paragraph 102 as suggesting that there was no evidence; rather, we would read it as a statement that there was no evidence which the Court accepted. We would accept that the choice of words was perhaps unfortunate but the meaning, when the four paragraphs are read together, is tolerably clear. We would therefore reject this ground of appeal.
Ground 22
Ground 22 was that the trial judge had erred by concluding that Ms Richardson would only have been entitled to economic loss calculated at $10,000 per year until 2012 when her salary at EMC reached what it had been at Oracle without addressing the likelihood of any future pay rises Ms Richardson would have received had she remained in employment at Oracle. The essence of this point was that what was likely to happen in the future at EMC and what might have happened in the future at Oracle were matters which the trial judge should have assessed on a probabilistic basis and it was not sufficient for his Honour merely to dismiss them as speculative. Reference was made to cases in a variety of contexts where plaintiffs had been held entitled to recover damages for lost chances: cf. Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 (“Malec”) (tort); Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 (contract); Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 (statutory damages).
The uncertainties related to what Ms Richardson’s future base income would have been at Oracle and EMC and also to what magnitude of bonuses she might have received at both.
It is convenient to deal with the issue of base income separately from the position of the bonuses. Ms Richardson sought to prove her case by calculating what the rate of growth had been in her base income at Oracle and comparing it to the rate at which her base income at EMC had increased. The evidence showed that her base salary in January 2003 had been $118,700 (which excluded superannuation). That base salary was increased in March 2008 to $150,000 (although the offer letter appears to be dated November 2007, nothing turns on this). This reflected a net increase of $31,300 or an increase of 26.36% over that five year and two month period. Taking into account the effects of compounding this was equivalent to an annual rate of 3.98% or 3.99%. However, as the trial judge’s analysis set out above shows, the question of salary increases was connected with the question of promotion (at [100]). Ms Richardson had been promoted every two years at Oracle up to the time at which the events giving rise to this litigation occurred. However, his Honour noted that another person at Oracle at the level immediately above hers had waited eight years for her promotion. It was clear that his Honour did not accept that Ms Richardson would continue to be promoted at the same speed. For that reason he was sceptical about using her past salary increase rate as a guide for what might happen in the future.
There is nothing outlandish about this reasoning. Consequently, it is difficult to fault (and we do not) the trial judge’s conclusion: “The evidence to support them was largely historical, from which extrapolations were attempted on the basis of some presumption that things would go on as before. But there were obvious difficulties in the analysis” (at [100]).
Insofar as her base salary at EMC was concerned, the trial judge noted that she had commenced at that firm on the lower base salary of $140,000 (as opposed to $150,000 at Oracle) but that she had made this up by 2012. It was that reasoning which led his Honour to conclude (at [253]-[254]) that her future economic loss was limited to $10,000 per annum for that three year period. That conclusion proceeds upon an assumption that her base salary would not have increased at Oracle over the same period. That assumption on the trial judge’s part was, however, quite consistent with his Honour’s rejection of the manner in which Ms Richardson had sought to prove what the increase in her base income might have been at Oracle. In the absence of some other methodology there was really no other way for his Honour to have proceeded.
The central plank in Ms Richardson’s future economic loss case was the alleged disparity between the rate of growth in her salary at Oracle (which she calculated at 3.98% or 3.99%) and the rate of growth in her base salary at EMC (which she calculated at 2.33%). As we have said above, the trial judge was unpersuaded for reasons with which we agree that he should proceed on the basis of the 3.98% or 3.99% figure. His Honour did not deal directly with the growth rate for EMC but this was unnecessary once one integer in the comparison process had been rejected. Large difficulties stood in the way of accepting the proposed analysis in light of the trial judge’s conclusion that her promotion opportunities were just as good at EMC and his rejection of her argument that this was not so just because EMC was a smaller company than Oracle (at [102]).
Turning then to the question of bonuses at Oracle, Ms Richardson’s submission was developed by reference to the bonuses she had been paid upon achieving her then current level within Oracle (‘IC4’). She had been paid three such quarterly bonuses but not a fourth since she had been on leave during that quarter. Those bonuses were $11,906.20 (Q4 FY08), $11,344.14 (Q1 FY09) and $3,098.75 (Q2 FY09). Her target bonus was set at 25% of her base salary and so was $37,500. Her quarterly bonus target was therefore $9,375. Ms Richardson submitted that she had achieved an average bonus rate of 23.42% of her salary. This was true but conceals considerable variability. For the three quarters for which data was available, the percentage rates were 127%, 121% and 33% of her target bonus ($9,375). It is thus true to say that overall Ms Richardson achieved 93.6% of her target bonus (being the average of the percentage of the three quarters). The three figures, however, are a distinctly small sample set which is consistent with the fact that the three quarters exhibit a very high level of deviation from that mean.
A similar process was engaged in to show that the long term average bonus rate achieved by Ms Richardson in all positions, and not just IC4, was 68.5%. The submission was that the Court should have awarded Ms Richardson a figure somewhere between 68.5% and 93.6% of her target bonus (being 25% of annual salary). Again, we agree with the trial judge that this was a highly speculative way to approach the matter.
Ms Richardson’s payslips at EMC showed that in the period between April 2009 and September 2012 she achieved 103% of her target bonus of 25% of base salary (i.e., 25.55%). Thus her bonus position at EMC was better as a percentage than the bonus position she put forward at Oracle. To counter that proposition it was observed that at EMC her bonus target would not be increased on promotion (unlike the situation at Oracle). It also operated off a lower base salary.
The Court’s reasoning on the issue of the bonuses was as follows (at [252]):
The bonuses were not guaranteed; they were discretionary. They fluctuated from time to time from zero to around 25% of base salary for particular quarters of the financial year. Looking back it is possible to say, as the applicant urged, that after being promoted to the IC4 level she appeared to receive, on average, about 23% of her base salary in bonuses. However, that conclusion is based on data from only three quarters and is only available with the benefit of hindsight. The longer term historical position appears to have been less favourable, but any such calculation (whatever the resulting figure) suffers from the same defect.
[emphasis added]
The gravamen of the complaint is that it was erroneous for the Court to have discounted the value of what had happened in the past as a guide to what might happen in the future. Reliance was placed on Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (“Guo”) where six Justices said this (at 574):
The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity.
This does not require the past always to be considered in assessing future possibilities although it does suggest that it is often likely to be useful. The second half of the passage quoted above suggests that the extent to which the past may be used as a reliable tool for predicting the future may fluctuate from case to case. It is quite likely, although not certain, that the sun will come up tomorrow because that is what it has done for all of recorded human history. On the other hand, it is very unlikely, although not altogether impossible, that Mr Smith who won the lottery last week will win it again this week. In one case, what has happened in the past is useful material; in the other it is not. As the plurality observed in Guo, one needs to assess the circumstances of the past occurrences to assess their utility as a predictive tool.
In the particular circumstance in Guo the question was whether there was a real chance that Mr Guo would be persecuted for his political activities by the Chinese authorities. The plurality’s conclusion was that this question could not really be addressed without considering what Mr Guo’s past relations with those authorities had been. It was in that context that their Honours also said (at 575):
Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events. In the present case, for example, the Tribunal correctly relied on what it found had happened to Mr Guo and others to make a finding that he was not "differentially at risk for a Convention reason." Without making findings about the policies of the Chinese authorities and the past relationship of Mr Guo with those authorities, the Tribunal would have had no rational basis from which it could assess whether there was a real chance that he might be persecuted for a Convention reason if he were returned to the PRC.
We do not read this second passage as requiring a different approach to the first. It was a remark made in the particular context of assessing whether an applicant for a protection visa had a real chance of persecution if returned. It is very difficult to see that such an issue could be approached without an examination of the past.
We do not consider that the primary judge approached the case in a manner contrary to that which was suggested in Guo. His Honour’s point in relation to both base salary and bonuses was that the material which was available about the past was insufficient to provide any real guidance about the future.
There are two interrelated footnotes to this conclusion. The first is that the case pleaded by Ms Richardson was one in which she sought damages for “loss of income, bonuses and other benefits as an employee at Oracle” and also for “loss of opportunity for promotion and advancement at Oracle”. This was consistent with the case developed in this Court that she should be compensated for the loss of the chance that she would have been paid more if she had remained at Oracle. In principle, we would accept that this invited an approach to damages consistent with the kind of approach exhibited in Malec, that is, an assessment of the value of a foregone chance or opportunity. However, the material before the trial judge was simply not sufficient for the purpose of assessing that prospect.
The second is the invocation by Ms Richardson of the principle said to be embodied in Armory v Delamirie (1722) 93 ER 664 that where there is a difficulty in calculating damages and that difficulty has been brought about by the act of a defendant the Court should err in a plaintiff’s favour. We do not think that principle has anything to say in this case. The difficulties which exist are not related to the actions of Oracle. They are related to the, with respect, simplistic approach taken to the task at hand.
Another aspect to Ground 22 was that the trial judge had erred in only awarding $10,000 per year until 2012 when Ms Richardson’s salary at EMC had reached what it had been at Oracle in 2009. Ms Richardson submitted that this overlooked the possibility that Ms Richardson’s salary might itself have increased by 2012. It was said that this also overlooked the fact that her salary had grown faster at Oracle than it did at EMC. Given his Honour’s scepticism about the rate used to model the increases in Ms Richardson’s base salary at Oracle, we do not see that he could have proceeded otherwise than as he did.
We would reject this ground.
Ground 23
Here the argument was that the trial judge erred in imposing a standard of proof in relation to Ms Richardson’s economic loss which required inferences or findings to be made without the benefit of hindsight. We do not read the judgment that way. What the trial judge said was that the material before him was not adequate. His Honour did not say that past evidence could not be used; only that this past evidence was not up to the task which had been imposed upon it.
Ground 24
Lastly, Ms Richardson submitted that the trial judge had erred by failing to determine the value of Ms Richardson’s lost opportunity. We have dealt with this point above at [227].
It will follow that we would not interfere with the trial judge’s calculation of Ms Richardson’s economic loss as being $30,000, but we do differ respectfully from his Honour in concluding that that amount should in fact be awarded.
GROUNDS 25-28 (TRIAL COSTS)
The result of this Court’s conclusions is that Ms Richardson’s damages award should be increased from $18,000 to $130,000. This has costs implications. Well in advance of the trial the solicitors for Oracle and Mr Tucker served an offer of compromise apparently under the former Federal Court Rules by which they offered to settle the proceedings for $55,000 plus interest together with Ms Richardson’s costs as assessed or agreed. The offer was dated 1 September 2010, but was attached to an email, by way of service, sent on 3 September 2010.
Because his Honour only awarded $18,000 this led the trial judge, in a separate costs judgment, to order that Oracle pay Ms Richardson’s costs up until 11:00 am on 4 September 2010 (the day after the offer) and that she pay Oracle’s and Mr Tucker’s costs on an indemnity basis thereafter.
The factual underpinning for that conclusion has now gone since the judgment has been increased to $130,000. Grounds 25-28 attacked in various ways the trial judge’s reasoning on Oracle’s offer of compromise but none of these are material now that the judgment is to be increased.
On 20 September 2010 Ms Richardson made an offer expressed to be under Order 23 of the former Federal Court Rules on the basis that the respondents pay Ms Richardson $106,500 plus interest together with her costs as assessed or agreed. This offer was not accepted. The effect of this offer was not the subject of submissions before us. Ordinarily, it would be appropriate to remit this issue to the trial judge. However, there are some circumstances which may suggest that this is not appropriate in the present appeal. As the reasons of Kenny J show, whilst we have concluded that the award in this case was manifestly inadequate, the award given by the trial judge was not out of step with some past awards in cases of this kind. In this circumstance, there may be an argument available to Oracle that it ought not to be criticised for rejecting an offer which was out of line with those other awards. In turn, this may require a consideration of the parties’ reasonable or prudent expectations of the litigation at the time of the offer. This Court is better placed to decide this than the trial judge. In those circumstances, we would hear the parties (in writing) on the issue of the costs of the trial.
In the course of his Honour’s costs judgment, the trial judge referred to the former Order 62 r 36A(1) which provides for a one third reduction in costs if less than $100,000 is recovered (unless the Court otherwise orders). As his Honour correctly noted at [44] this former rule was directed to the taxing officer. It might be noted that the current rule (r 40.08 of the Federal Court Rules 2011 (Cth)) does not operate in that fashion and requires the making of an application to the Court before it is enlivened. On the conclusion his Honour reached that there should be judgment for $18,000 he could see no reason to order that Order 62 r 36A(1) not apply. On the conclusions we have reached this issue does not, however, arise.
CONCLUSION
We would make the following orders:
1.The appeal be allowed.
2.(a) The order made by Buchanan J on 20 February 2013 that “[t]he first respondent is to pay to the applicant within 21 days the sum of $18,000 by way of damages as compensation for breach of s 28B(2) of the Sex Discrimination Act 1984 (Cth)” be set aside and;
(b) in lieu thereof order:
“There be judgment for the applicant against the first respondent in the sum of $130,000.”
3.The first respondent pay the appellant’s costs of the appeal.
4.The orders made by Buchanan J on 19 April 2013 be set aside.
5.The appellant file and serve any submissions on the issue of the costs of the trial within 21 days.
6.The first respondent file and serve any submissions in reply within a further 21 days.
I certify that the preceding one hundred and twenty-one (121) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Besanko and Perram. Associate:
Dated: 15 July 2014
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