Robinson v Goodman

Case [2013] FCA 893

FEDERAL COURT OF AUSTRALIA

Robinson v Goodman [2013] FCA 893

Citation: Robinson v Goodman [2013] FCA 893
Parties: SALLYANNE ROBINSON v PHILIP HARRY GOODMAN and RIVERS (AUSTRALIA) PTY LTD
File number: VID 61 of 2011
Judge: MORTIMER J
Date of judgment: 2 September 2013
Catchwords: EVIDENCE — application to adduce tendency evidence — whether significant probative value — meaning of fact in issue — general discretion to exclude — application allowed in part.
Legislation: Evidence Act 1995 (Cth) ss 55, 56, 97, 135
Evidence Amendment Act 2008 (Cth)
Sex Discrimination Act 1984 (Cth) s 28A
Cases cited:

Astram Financial Services Pty Ltd v Bank of Queensland Ltd [2010] FCA 1010
DSJ v Director of Public Prosecutions (Cth) (2012) 215 A Crim R 349; [2012] NSWCCA 9
FB v The Queen [2011] NSWCCA 217
Hoch v The Queen (1988) 165 CLR 292
Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51
R v Harker [2004] NSWCCA 427
Richards v Macquarie Bank Ltd (No 2) [2012] FCA 1403
Shiels v James [2000] FMCA 2
Smith v The Queen (2001) 206 CLR 650
Twynam Pastoral Co Pty Ltd v AWB (Australia) Ltd [2008] FCA 1922
Zaknic Pty Ltd v Svelte Corporation Pty Ltd (1995) 61 FCR 171

Odgers S, Uniform Evidence Law (10th ed, Thomson Reuters, 2012)
Date of hearing: 30 August 2013
Place: Melbourne
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs:  57
Counsel for the Applicant: Ms F O'Brien SC with Ms K Gladman
Counsel for the Respondents: Mr H Borenstein SC with Mr N Harrington
Solicitor for the Applicant: Max Legal
Solicitor for the Respondents: Norton Rose Fulbright

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 61 of 2011
BETWEEN:

SALLYANNE ROBINSON
Applicant
AND:

PHILIP HARRY GOODMAN
First Respondent

RIVERS (AUSTRALIA) PTY LTD
Second Respondent

JUDGE:

MORTIMER J

DATE OF ORDER:

2 SEPTEMBER 2013

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.Items 17, 20, 21, 22, 23, 26, 30 and 35 of the amended Notice to Adduce Tendency Evidence served by the applicant, in respect of the evidence of Ms Rachael Adamopoulos, are admissible under s 97 of the Evidence Act 1995 (Cth).

2.Item 39 of the amended Notice to Adduce Tendency Evidence served by the applicant, in respect of the evidence of Ms Hannah Tongue, is admissible under s 97 of the Evidence Act 1995 (Cth).

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 61 of 2011
BETWEEN:

SALLYANNE ROBINSON
Applicant
AND:

PHILIP HARRY GOODMAN
First Respondent

RIVERS (AUSTRALIA) PTY LTD
Second Respondent

JUDGE:

MORTIMER J

DATE:

2 SEPTEMBER 2013

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

INTERLOCUTORY JUDGMENT ON TENDENCY EVIDENCE

  1. The applicant has applied to adduce tendency evidence from two witnesses in this proceeding. By order of Gray J, the trial is being conducted by adducing viva voce evidence from all witnesses, on the basis of outlines of evidence filed in…

Continue reading Robinson v Goodman

Sign in free to access the full text

Details
AGLC
Robinson v Goodman [2013] FCA 893
Case
[2013] FCA 893
Decision Date

CaseChat Overview and Summary

In Robinson v Goodman, the plaintiff, Ms Robinson, alleged that her former employer, Mr Goodman, had sexually harassed her. This included claims that Mr Goodman touched her body without consent, made unwelcome sexual comments, and required her to model clothing in inappropriate circumstances. Mr Goodman admitted to some of the conduct but denied that it was of a sexual nature. The dispute centred on the admissibility of tendency evidence that Mr Goodman had similarly harassed other female employees in the past. The case was heard in the Federal Circuit Court of Australia.

The key legal issue was whether the tendency evidence was admissible under section 97 of the Evidence Act 1995 (Cth). The court had to determine if the evidence was relevant to the facts in issue and whether its probative value outweighed any prejudicial effect it might have. The court also needed to consider whether the evidence was necessary to establish a fact in issue or to rebut a fact in issue or a fact relevant to a fact in issue.

The court found that the evidence of a pattern or modus operandi was relevant because it helped to establish that the conduct in question was of a sexual nature. The similarities in the overall circumstances of the incidents involving multiple employees supported the conclusion that the conduct was part of a pattern of sexual harassment. The court noted that while some details of the tendency evidence might differ from the alleged facts, the overall similarities were significant. The court determined that the probative value of the evidence outweighed any prejudicial effect it might have, and it was therefore admissible.

The court's reasoning was based on the understanding that the statutory phrase "conduct of a sexual nature" was a composite one and an element of the definition of sexual harassment. The court held that the fact that some conduct or part of the conduct was admitted by the defendant did not mean that the fact was no longer in issue for the purposes of admissibility questions. The characterisation of the conduct as sexual required consideration of the evidence, and the tendency evidence played a crucial role in that determination.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

In the end, these are but factors which, in combination, are capable of increasing or decreasing the probative value of evidence. Rather than relying on them as a checklist, a Court should reflect on how, in combination, they affect the probative value of the evidence sought to be adduced, as those terms are defined in the Evidence Act, and in the circumstances of the particular proceeding.THE FACTS IN ISSUE As Mr Borenstein submitted, close attention to the facts in issue in the proceeding is needed to undertake this exercise. The ultimate fact in issue is, relevant to the tendency argument, whether Mr Goodman engaged in sexual harassment of Ms Robinson contrary to the provisions of the SDA. To pick up the language of s 28A of the SDA and take the “fact in issue” to the next and more specific level, the facts in issue are whether Mr Goodman made unwelcome sexual advances to Ms Robinson, or engaged in other unwelcome conduct of a sexual nature in relation to Ms Robinson in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that Ms Robinson would be offended, humiliated or intimidated. As in a criminal trial where the elements of each offence will be facts in issue, in civil proceedings dealing with statutory causes of action, so each of the elements of the relevant statutory definition will be facts in issue. Here, relevantly, that is the definition in s 28A. Sitting at a level below the facts in issue (in the sense of elements of an offence or of a statutory definition) are many issues about facts relevant to the ultimate one: see Smith v The Queen (2001) 206 CLR 650 at [7]. Mr Borenstein was correct to submit that, in a case conducted by pleadings, if a fact in issue or a fact relevant to a fact in issue is asserted and admitted by the opposing party, there is no dispute as to the existence of that fact. He submitted that meant the fact was no longer “in issue”. If that were so, his argument continued, tendency evidence was not admissible in respect of that fact. I note that the logical extension of this argument is that, by reason of the provisions of s 55 of the Evidence Act, the evidence may not be admissible at all. In some cases, and depending on the quality and specificity of the pleadings, that may be so. But the proposition has no application to the pleadings in the current case, nor to the cause of action of sexual harassment alleged in them. That is because the “elements” of sexual harassment in s 28A involve composite phrases. For example, the key fact in issue in respect of which the tendency evidence is to be admitted is whether Mr Goodman “engaged in conduct of a sexual nature” or made “sexual advances”. The aspect of “unwelcome” is to be determined only in respect of Ms Robinson, and the “reasonable person” aspect of the definition was not said to be engaged in the question of the admission of the tendency evidence. It is true that various allegations are pleaded as constituting the conduct of a sexual nature, or the sexual advances. It is true, as Mr Borenstein pointed out, that they might well have been better pleaded as material facts rather than as particulars. But it does not follow, in my opinion, that simply because one allegation, or a part of one allegation, is admitted, a fact is no longer in issue for the purposes of admissibility questions. It may be that a fact relevant to a fact in issue is not disputed. But that is a different matter. On the question of admissibility, evidence affecting the probability of whether Mr Goodman engaged in conduct of a sexual nature towards Ms Robinson will be admissible, nonetheless because Mr Goodman admits to some conduct but says it is not of a sexual nature. The statutory phrase is a composite one and is itself an element of the definition and therefore a fact in issue. To determine whether the evidence establishes conduct of a sexual nature involves a question of characterisation, which is neither answered nor avoided by an admission that particular words were uttered or a particular event occurred.

Evidence

Evidence Before The Court

I have spent some time on this issue because in my opinion it is a part of the applicant’s case which needs to be borne in mind in considering the tendency evidence, and when considering Mr Borenstein’s submission about some facts not being in issue.THE EVIDENCE SOUGHT TO BE ADDUCED The evidence sought to be adduced by the applicant narrowed as the argument developed, after having already been narrowed from the first Tendency Notice which was served on the respondents. That was a sensible course. Reasonable notice under s 97(a) was not disputed by the respondents. The contents of the Tendency Notice relied on by the applicant (amended to reflect what was not pressed), service of which in accordance with s 97(1)(a) was not disputed by the respondents, is attached to these reasons for judgment. The applicant submits this evidence establishes a tendency in Mr Goodman to engage in a “calculated pattern of sexual pressure and harassment”, or a modus operandi of treating some of his female employees. The applicant submits the pattern or modus operandi is demonstrated by:·Touching female employees’ bodies without their consent.·Calling female employees pet names or nicknames that were unwelcome, of a sexual nature and/or insulting.·Making unwelcome statements about female employees’ sex lives, the sex lives of their partners or relatives, or his own sex life.·Requiring some female employees to adopt the role of his wife or partner during sample shopping trips, including using such occasions to purportedly legitimise other unwelcome conduct of a sexual nature including calling them names such as “hun”, “honey bun” and “honey” and touching, asking about or commenting on their bodies in a suggestive, sexual way.·Requiring or requesting some female employees to try on or model clothing samples including but not limited to jeans, underwear and swimwear in front of him at the premises of the second respondent, at times or in locations when other staff were not present, despite their hesitation or objections.·Requiring certain female employees to be present at and assist with photography shoots featuring naked models, where a reasonable person in all the circumstances would have anticipated the possibility that the employees would be offended, humiliated or intimidated.·Discussing what Mr Goodman perceived to be particular sexual characteristics of races or classes of people to which the employees’ family members belonged, in order to comment inappropriately on them.·Commenting on employees’ relationships with their partners or spouses including making unwelcome and/or insulting comments about their partners.CONSIDERATION So far as I am aware, this is the first case in which the Court has been asked to decide on the admission of contested tendency evidence in a proceeding dealing with allegations of sexual harassment. As I have stated above, in my opinion authorities from both this Court in the trade practice areas, and from the field of the criminal law, can assist in considering this application.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The applicant submits this evidence establishes a tendency in Mr Goodman to engage in a “calculated pattern of sexual pressure and harassment”, or a modus operandi of treating some of his female employees. The applicant submits the pattern or modus operandi is demonstrated by:·Touching female employees’ bodies without their consent.·Calling female employees pet names or nicknames that were unwelcome, of a sexual nature and/or insulting.·Making unwelcome statements about female employees’ sex lives, the sex lives of their partners or relatives, or his own sex life.·Requiring some female employees to adopt the role of his wife or partner during sample shopping trips, including using such occasions to purportedly legitimise other unwelcome conduct of a sexual nature including calling them names such as “hun”, “honey bun” and “honey” and touching, asking about or commenting on their bodies in a suggestive, sexual way.·Requiring or requesting some female employees to try on or model clothing samples including but not limited to jeans, underwear and swimwear in front of him at the premises of the second respondent, at times or in locations when other staff were not present, despite their hesitation or objections.·Requiring certain female employees to be present at and assist with photography shoots featuring naked models, where a reasonable person in all the circumstances would have anticipated the possibility that the employees would be offended, humiliated or intimidated.·Discussing what Mr Goodman perceived to be particular sexual characteristics of races or classes of people to which the employees’ family members belonged, in order to comment inappropriately on them.·Commenting on employees’ relationships with their partners or spouses including making unwelcome and/or insulting comments about their partners.CONSIDERATION So far as I am aware, this is the first case in which the Court has been asked to decide on the admission of contested tendency evidence in a proceeding dealing with allegations of sexual harassment. As I have stated above, in my opinion authorities from both this Court in the trade practice areas, and from the field of the criminal law, can assist in considering this application. In the area of sexual offences, there is clear authority for the proposition that the details of the tendency evidence sought to be led may differ from the alleged facts in the proceeding, but if the overall circumstances are sufficiently similar, that may give the evidence enough importance to be characterised as having significant probative value: see R v Harker [2004] NSWCCA 427 at [55]. However these kinds of conclusions will be specific to the proceedings in issue and the nature of the tendency evidence. Nevertheless I have gained some assistance from the analysis in Harker. Especially where reliance is placed on a sequence of conduct, said to constitute a pattern and said to at least in the alternative gain its colour as conduct of a sexual nature by looking at the overall circumstances, it is important in making a determination under s 97 to look at the similarities in the overall circumstances, as well as the close detail of the evidence.