FEDERAL COURT OF AUSTRALIA
Taylor v August and Pemberton Pty Ltd [2023] FCA 1313
File number: NSD 643 of 2021 Judgment of: KATZMANN J Date of judgment: 31 October 2023 Catchwords: HUMAN RIGHTS – discrimination – sexual harassment – where the applicant alleged that her employer had repeatedly engaged in sexual harassment by the conduct of its principal and sole director, by giving her numerous gifts, slapping her on the buttock, making various comments to her about her appearance orally and in text messages, declaring his affection for her and raising the matter again after she had told him she was not interested – whether all the alleged gifts were gifts or were unsolicited — whether any of the gifts were unwelcome – whether the applicant was slapped on the buttocks – whether comments and declarations of affection were made and whether they were unsolicited – whether any of the conduct amounted to “an unwelcome sexual advance or “other unwelcome conduct of a sexual nature” within the meaning of s 28A of the Sex Discrimination Act 1984 (Cth) – whether, if so, the conduct occurred in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the applicant would be offended, humiliated or intimidated
HUMAN RIGHTS – victimisation – where in correspondence from her lawyers the applicant informed the respondents she was proposing to make a complaint about the alleged conduct to the Australian Human Rights Commission and did in fact do so, whether, by demanding the return of certain property, threatening to report the applicant to the police if she did not do so and/or making allegations of misconduct against her, the principal of the company, through his lawyers, committed acts of victimisation contrary to s 94 of the Sex Discrimination Act
DAMAGES – where applicant exhibited symptoms of anxiety and depression after the conduct complained of and there was no dispute she had a psychiatric disorder which had not previously been diagnosed, whether respondents’ conduct caused the disorder – what damages should be awarded – whether applicant entitled to aggravated damages
Legislation: Acts Interpretation Act 1901 (Cth) s 2C
Australian Human Rights Commission Act 1986 (Cth) ss 46PH(1B)(b), 46PO(4)
Evidence Act 1995 (Cth) s 140
Sex Discrimination Act 1984 (Cth) ss 28A, 28B, 94, 106
Federal Court Rules 2011 (Cth), rr 16.02(1)(d), 16.44
Anti-Discrimination Act 1977 (NSW) s 28A
Criminal Procedure Act 1986 (NSW) s 294
Cases cited: Australian Securities and Investments Commission v GetSwift Ltd (Liability Hearing) [2021] FCA 1384
Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd (1990) 169 CLR 279
Briginshaw v Briginshaw (1938) 60 CLR 336
Cassell & Co Ltd v Broome [1972] AC 1027
Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118; 63 AILR ¶101–302
Ewin v Vergara (No 3) [2013] FCA 1311; 307 ALR 576; 238 IR 118
Herald and Weekly Times Ltd v McGregor (1928) 41 CLR 254
Higgins v Orchard [2021] TASFC 12; [2021] EOC ¶93-946
Hughes (t/as Beesley and Hughes Lawyers) v Hill (2020) 277 FCR 511
John Fairfax Publications Pty Ltd v O’Shane (No 2) [2005] NSWCA 291
Jones v Dunkel (1959) 101 CLR 298
Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd (1991) 217 ALR 171
Ministry of Defence v Jeremiah [1980] QB 87
Nader v Urban Transit Authority of New South Wales (1985) 2 NSWLR 501
Nationwide News Pty Ltd v Rush [2020] FCAFC 115; 380 ALR 432
O’Callaghan v Loder (1983) 3 NSWLR 89
Richardson v Oracle Corporation Australia Pty Ltd (2014) 223 FCR 334
Spencer v Dowling [1997] 2 VR 127
Triggell v Pheeney (1951) 82 CLR 497
Vitality Works Australia Pty Ltd v Yelda (No 2) (2021) 105 NSWLR 403
Walker v State of Victoria [2012] FCAFC 38
Wearne v State of Victoria [2017] VSC 25; 268 IR 401
Dorne Boniface, The Common Sense of Jurors vs The Wisdom of the Law: Judicial Directions and Warnings in Sexual Assault Trials [2005] UNSWLawJ 261
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 560 Date of hearing: 31 October 2022, 1–4 November 2022, 9–10 November 2022, 28 November 2022 Counsel for the Applicant: Mr D Mahendra Solicitor for the Applicant: Maurice Blackburn Lawyers Counsel for the Respondents: Ms V Bulut (31 October 2022, 1-4 November 2022, 9-10 November 2022)
Mr RM Goot AO SC (28 November 2022)Solicitor for the Respondents: Beswick Lynch Lawyers ORDERS
NSD 643 of 2021 BETWEEN: FIONA TAYLOR
Applicant
AND: AUGUST AND PEMBERTON PTY LTD (ACN 150 962 315)
First Respondent
SIMON GREW
Second Respondent
ORDER MADE BY:
KATZMANN J
DATE OF ORDER:
31 OCTOBER 2023
THE COURT ORDERS THAT:
1.Judgment be entered in favour of the applicant.
2.By 4:00pm on 21 November 2023 the parties bring in short minutes of order giving effect to the judgment.
3.In the event that the applicant presses her claim for remedies other than damages (as sought in her amended originating application):
(a)the parties confer with a view to reaching agreement;
(b)if no agreement is reached:
(i)the applicant file submissions, not exceeding 5 pages, by 4:00pm on 28 November 2023;
(ii)the respondents file and serve submissions in response, not exceeding 5 pages, by 4:00pm on 5 December 2023;
(iii)the applicant file and serve submissions in reply, not exceeding 3 pages, by 4:00 pm on 12 December 2023; and
(iv)unless the court otherwise orders, any claim for additional relief be determined on the papers.
4.The respondents pay the applicant’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
TABLE OF CONTENTS
INTRODUCTION
[1]
THE BACKGROUND FACTS
[2]
PROOF
[26]
THE LAY WITNESSES
[28]
THE SEXUAL HARASSMENT CASE
[35]
The allegations
[35]
The statutory context
[37]
The evidence
[54]
Mr Grew’s feelings for Ms Taylor
[54]
The gifts
[61]
The allegations
[61]
The extent of the dispute
[62]
2018
[70]
The Chanel coin purse
[70]
The emerald and diamond platinum ring
[73]
The Hydra ring
[82]
The white gold hammered band ring and the 5 mm and 10 mm silver rings
[86]
2019
[91]
The six stone diamond necklace
[91]
The peach sapphire and the diamond cluster necklace
[97]
The jade bangle
[107]
$2000 cash
[118]
The massage
[126]
The Gemini stud earrings
[133]
The silver signet ring
[145]
Michael Kors bomber jacket
[148]
The MECCA gift card
[161]
2020
[164]
The gold signet ring
[164]
Stuller gold earrings
[168]
Gift giving at Grew & Co
[175]
The comments
[185]
“Petite, curvy brunettes” comment
[186]
“Beautiful body” comment
[187]
“Bedroom eyes” comment
[194]
“You are perfect” comment
[199]
“How amazing you look” comment
[206]
The slap
[209]
The declaration of feelings in early January 2020
[219]
The trip to the USA
[239]
Ms Taylor’s attitude towards the trip
[243]
The purchase of the Mociun ring
[246]
Transport from Sydney airport
[253]
Ms Taylor’s condition in March 2020
[254]
The 1 June 2020 remarks
[255]
The aftermath
[280]
Request to reduce working days
[282]
Further interactions in June – July 2020
[291]
Request to take annual leave to move house
[297]
Changing passwords
[302]
Inadvertent text message criticism
[303]
Further changing of passwords
[311]
Ms Taylor’s mental state between leaving work and receiving the respondents’ response to her complaint
[312]
Findings
[313]
Some matters of context
[313]
Which of the items were gifts and/or unsolicited?
[317]
Did Mr Grew slap Ms Taylor on her buttock(s) on 23 July 2019?
[326]
Did Mr Grew make unsolicited comments to Ms Taylor about her appearance between October and December 2019 as alleged?
[337]
Did Mr Grew say to Ms Taylor the things she attributed to him in the conversations in the office on 6 January 2020 and in the car on 1 June 2020?
[342]
Which, if any, of the alleged conduct was of a sexual nature and/or a sexual advance and unwelcome?
[350]
The argument
[350]
The gifts
[352]
The slap on the buttock
[376]
The comments about Ms Taylor’s appearance
[377]
The overtures in January and June 2020
[378]
Were the circumstances in which the relevant conduct occurred such that a reasonable person would have anticipated the possibility that Ms Taylor would be offended, humiliated or intimidated?
[387]
Conclusion
[394]
THE BREACH OF CONTRACT CLAIM
[395]
THE VICTIMISATION CASE
[396]
The statutory context
[396]
The allegations
[403]
The evidence
[404]
Ms Taylor complains of sexual harassment and foreshadows the making of a complaint to the AHRC (the 28 August letter)
[407]
The response to the 28 August letter (the 4 September letter)
[409]
Ms Taylor complains to the AHRC
[421]
The respondents press their claim for the return of company property and add a new allegation (the 15 October letter)
[422]
Ms Taylor requests particulars
[424]
The respondents file their response to the AHRC complaint accusing Ms Taylor of theft and threaten to report her to the police
[427]
AHRC conciliation
[431]
The respondents request the return of confidential information (the 19 March letter)
[432]
The issues as defined by the parties
[439]
The argument
[441]
Findings
[449]
RELIEF
[455]
The power to make orders
[455]
The relief sought
[457]
The damages claim
[458]
The lay evidence
[459]
The expert evidence
[472]
Findings
[488]
General damages
[501]
Aggravated damages
[523]
Out-of-pocket expenses
[541]
Past economic loss
[549]
Future economic loss
[554]
Interest
[558]
The claim for declaratory and other relief
[559]
CONCLUSION
[560]
REASONS FOR JUDGMENT
KATZMANN J:
INTRODUCTION
Fiona Taylor complains that she was sexually harassed by Simon Grew over a period of about 22 months while she was employed by his company, August and Pemberton Pty Ltd t/as Grew & Co, and claims that Mr Grew victimised her after she complained. She alleges that Mr Grew’s conduct breached her contract of employment and was unlawful under the Sex Discrimination Act 1984 (Cth) (SDA) and the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act). She seeks various forms of relief from Grew & Co and Mr Grew himself. The claims were vigorously contested and the credit of the two protagonists is squarely in issue.
THE BACKGROUND FACTS
Nonetheless many of the facts were uncontroversial. The following account is derived from an agreed statement, the documentary evidence, and undisputed testimony.
Grew & Co is a small business which manufactures and sells fine jewellery. It was established in 2007 by Mr Grew, who is a jeweller, designer, the manager of the business, and the sole director of the company.
Ms Taylor accepted an offer of employment from Grew & Co on 30 November 2017. At the time she was employed by Larsen Jewellery. The previous day Mr Grew sent her an email stating, among other things:
I think you will be an asset to our company and I also think you will have creative opportunities and professional growth within Grew & Co that will far exceed your available potential within the structure and management of Larsen Jewellery. Often new opportunities come with the element of risk which in this case for both of us is now financial, by meeting you in the middle we both have the incentive to make the opportunity work and be profitable in the future.
Think it over, let me know how you feel. I want to make G&Co the most forward thinking and performing brand with[in] the Australian jewellery industry, it would be great to have you on board with that.
Ms Taylor was employed by Grew & Co from 18 January 2018 until 6 April 2022, reporting directly to Mr Grew. Ms Taylor was born on 14 September 1988, which means that when she began working for Grew & Co she was 29 and ceased when she was 34. Mr Grew is 10 years her senior.
The terms of her contract included those set out in an email from Mr Grew on 9 December 2017:
As we discussed your position will be full time, from Tuesday to Saturday and we have agreed to $65k + super commencing on January 18, 2018. Your role will involve managing client enquiries and project management, liaising with suppliers and diamond & gemstone sourcing as well as managing consignments. Your role will also involve working with clients as a creative representation of Grew & Co.
The title on your business cards will be “Couturier of fine jewellery” however we can work on your title within the business which will be a mix of project management and creative.
It was an implied term of the employment contract that Grew & Co would take reasonable care to provide her with a safe place of work.
Ms Taylor was educated to year 12 level. She enrolled in a Bachelor of Fine Arts at the University of New South Wales, majoring in jewellery design, but discontinued after two years. Her previous job as a “studio assistant” with Larsen Jewellery lasted about 18 months. Before that she worked in the music industry as a “booker” for bands.
When she started working for Grew & Co, Ms Taylor was one of six employees, all of whom reported directly to Mr Grew. Mr Grew, Ms Taylor and two other employees — Andrew Snow and Mai Vu — worked from the Sydney premises of Grew & Co at 350 George Street Sydney. Three employed jewellers worked in an off-site workshop. There was no human resources (HR) department and “no HR person” on the staff. Anyone who had an issue had to raise it directly with Mr Grew.
Ms Taylor was excited to join Grew & Co. She considered the culture was friendly and welcoming. She enjoyed the company of those with whom she worked. She felt that she “finally” had a boss who recognised her talents and championed them. Mr Grew told her “constantly” how valuable she was to the business and that she did “an amazing job”. He also told her she was a “superstar”. She felt like she had found her dream job.
Ms Taylor began as a sales consultant or, as she put it, in a “customer service sales role”. But over time she took on more responsibilities and by late 2018 she became “production manager”. Around this time, Grew & Co relocated to premises at 161 Clarence Street Sydney. From then on she shared an office with Mr Grew.
As Mr Grew put it, in her role as production manager Ms Taylor “fundamentally manag[ed] the entire stages of the production of jewellery within the workshop”. That involved liaising with sales staff and designers, sourcing gemstones and diamonds, creating job packets, responsibility for quality control, and, for a time, managing Grew & Co’s Instagram account. It is common ground that she performed very well. Mr Grew said she was “organised, consistent and … motivated”, and “really efficient”. He described her as “a trusted and great asset to the company”.
Ms Taylor and Mr Grew often worked in close proximity to each other. Their conversations were not confined to work-related matters. Mr Grew was aware that Ms Taylor was in a relationship when she started working at Grew & Co and during the course of her employment they spoke about the problems she was having in the relationship.
At the time Ms Taylor joined the staff of Grew & Co, Mr Grew was married. In about August 2018 he and his wife separated. He informed Ms Taylor first before telling all the other employees individually.
From about this time, Mr Grew gave Ms Taylor numerous gifts, which she alleges were unwelcome. Mr Grew was also generous to other members of staff, although not to the same extent.
Ms Taylor gave Mr Grew a birthday present in 2019 and Christmas presents in 2018 and 2019. She also organised a group gift for Mr Grew’s birthday in 2018.
Ms Taylor and Mr Grew often communicated by text. The text messages reproduced in these reasons appear in their original form, without correction for errors in spelling or punctuation. Many of the texts were personal in nature and in at least one of them Mr Grew praised her appearance. He also admitted to telling Ms Taylor that she had a beautiful body.
In January 2020 Mr Grew revealed to Ms Taylor that he had developed “feelings” for her. She was overwhelmed by the revelation. Ms Taylor made it clear to him that she was not interested in a romantic relationship with him. There was a dispute about whether she did so at the time, but for present purposes at least it does not matter.
The following month Ms Taylor and Mr Grew were due to take a business trip to attend an international gem and mineral exhibition (the Gem and Mineral Show) in Tucson, Arizona. Before they left Ms Taylor informed Mr Grew, via text, that she was feeling anxious about the trip and wanted to put down some boundaries.
In mid-March 2020, in response to the COVID-19 pandemic, Mr Grew directed all employees to work from home except for Asato Tanaka, another jeweller, and Ms Taylor. Mr Grew offered to reimburse his employees for parking costs and tolls incurred by driving into work during this time.
On 1 June 2020, after driving Ms Taylor home from work, Mr Grew and Ms Taylor had a conversation in which he revived the subject of his January 2020 revelation which caused Ms Taylor considerable distress.
Ms Taylor did not attend work from 2 June 2020 until 8 June 2020 and last attended work for Grew & Co on 7 August 2020. Psychiatrists retained for both parties to the litigation consider she has a psychiatric disorder to which, if her history is accepted, the events she described substantially contributed.
On 28 August 2020 Ms Taylor, through her lawyers, complained that Mr Grew had sexually harassed her. The letter generated a combative response.
On 23 September 2020 she lodged a complaint with the Australian Human Rights Commission (AHRC). The complaint was terminated in accordance with s 46PH(1B)(b) of the AHRC Act because the President, through her delegate, was not satisfied there were reasonable prospects of the matter being settled by conciliation.
Ms Taylor resigned from Grew & Co on 6 April 2022. She found other, less rewarding, work in Queensland.
PROOF
As Ms Taylor is the moving party, she bears the onus of proof. As this is a civil case, the standard of proof is the balance of probabilities. The question of whether the standard is met and the onus discharged is informed by the nature of the cause of action, the nature of the subject-matter of the proceeding, and the gravity of the allegations: Evidence Act 1995 (Cth), s 140. Section 140 is effectively an enactment of the principle described by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361–2:
Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
In considering whether Ms Taylor’s allegations have been made out, I have applied this standard, mindful of the principle in Briginshaw.
THE LAY WITNESSES
Six lay witnesses gave evidence, including Ms Taylor and Mr Grew.
Ms Taylor was the only witness in her case. Although she had foreshadowed through her counsel that her sister, Sonia, would also be called, Sonia was not called. But the respondents made nothing of that. In particular, they did not submit that the Court should infer from her absence that nothing she could say would assist Ms Taylor’s case: see Jones v Dunkel (1959) 101 CLR 298. And I draw no such inference.
Mr Grew submitted that Ms Taylor was “far from a satisfactory witness”. He claimed that her evidence changed, was embellished in parts, was self-serving, and at times incredible. I put to one side the submission that the evidence was self-serving. That could be said of the evidence of any party to any proceeding. It is true that there were some inconsistencies in her accounts. But inconsistencies are not necessarily the product of dishonesty. They may be the product of faulty recollection. Ms Taylor was cross-examined at length. By and large I found her to be an impressive witness. She was never defensive, evasive or aggressive. She appeared to answer the questions honestly. While some aspects of her evidence appeared to be reconstructions of events, rather than genuine recollections, and some of her answers appeared, as the respondents submitted, rather formulaic, I do not consider that she was dissembling. She made reasonable concessions and did not appear to exaggerate her claims. There were few inconsistencies and much of her evidence was supported by contemporaneous documents.
Mr Grew gave evidence, together with four of his current and former employees: Andrew Snow, Asato Tanaka, Mai Vu, and Ayesha Nicholson-Black.
Mr Grew presented well in examination in chief. But in several respects his evidence was inconsistent and when that was pointed out to him in cross-examination he became defensive. Unlike Ms Taylor, he failed to make reasonable concessions. At times he was aggressive in his responses and often evasive. When he was obviously uncomfortable with the line of cross‑examination he appeared unwilling to give direct answers to simple questions. Aspects of his account strained credibility.
Mr Snow came across as honest, sincere and genuine. I also formed a favourable impression of Ms Nicholson-Black and Mr Tanaka. There is no reason not to accept their evidence and Ms Taylor made no submission to this effect.
On the other hand, Ms Vu appeared rehearsed in examination in chief and defensive under cross-examination. She struggled to give direct answers and did not make reasonable concessions. I consider that her evidence was affected by her obvious loyalty to Mr Grew, for whom she continues to work.
THE SEXUAL HARASSMENT CASE
The allegations
Ms Taylor alleges that Mr Grew contravened s 28B(2) of the SDA by engaging in various acts constituting unwelcome conduct of a sexual nature in relation to her and/or making unwelcome sexual advances to her. The acts fall into relatively discrete categories: the provision of numerous gifts; the making of certain comments and “declarations of feelings”.
Mr Grew conceded that some, but by no means all, of the gifts were unsolicited. The fact that Mr Grew made some of the comments upon which Ms Taylor relies was not in dispute but Mr Grew sought to provide an innocent explanation for them. As I have already indicated, Mr Grew admitted that he was attracted to Ms Taylor and that he told her as much, but he denied that he engaged in conduct of a sexual nature, made sexual advances to her or that any of his conduct was unwelcome.
The statutory context
The prohibition against sexual harassment appears in Pt II Div 3 of the SDA.
Section 28B(2) relevantly provides that it is unlawful for one employee to sexually harass another. Ms Taylor’s pleading contains no allegation that Mr Grew was an employee of Grew & Co although that was plainly a material fact that should have been pleaded. Nevertheless, the case was defended on the basis that, if Mr Grew were found to have contravened the SDA, Grew & Co is liable. The respondents admitted as much in the statement of agreed facts. I infer that it is common ground that Mr Grew was an employee of Grew & Co as well as its sole director and manager.
In any case, s 28B(1) relevantly provides that it is unlawful for a person to sexually harass an employee of the person. References to a person in any Commonwealth statute include both corporations and individuals: Acts Interpretation Act 1901 (Cth), s 2C. Thus Grew & Co is a person for the purpose of s 28B(1).
Section 106 of the SDA renders a person vicariously liable for unlawful discrimination and sexual harassment committed by its employee or agent unless the employer took all reasonable steps to prevent conduct of that kind. It provides:
(1)Subject to subsection (2), where an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent:
(a)an act that would, if it were done by the person, be unlawful under Division 1 or 2 of Part II (whether or not the act done by the employee or agent is unlawful under Division 1 or 2 of Part II); or
(b)an act that is unlawful under Division 3 of Part II;
this Act applies in relation to that person as if that person had also done the act.
(2)Subsection (1) does not apply in relation to an act of a kind referred to in paragraph (1)(a) or (b) done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph.
If Mr Grew was not an employee of Grew & Co, he was its agent.
Section 28B is a remedial provision in legislation intended to protect human rights and should therefore be broadly construed: Ewin v Vergara (No 3) [2013] FCA 1311; 307 ALR 576; 238 IR 118 (Bromberg J) at [32] (appeal dismissed: Vergara v Ewin (2014) 223 FCR 151 per North, Pagone and White JJ). Further, as Bromberg J observed in Ewin v Vergara at [37], “temporal considerations”, such as whether the conduct in question occurred during working hours or while the people in question were working, are not mentioned and the legislation was not intended to be limited by considerations of that kind.
“Sexual harassment” is defined in s 28A of the SDA. At all relevant times it read as follows:
Meaning of sexual harassment
(1)For the purposes of this Division, a person sexually harasses another person (the person harassed) if:
(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
(b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed;
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.
(1A)For the purposes of subsection (1), the circumstances to be taken into account include, but are not limited to, the following:
(a) the sex, age, sexual orientation, gender identity, intersex status, marital or relationship status, religious belief, race, colour, or national or ethnic origin, of the person harassed;
(b) the relationship between the person harassed and the person who made the advance or request or who engaged in the conduct;
(c) any disability of the person harassed;
(d) any other relevant circumstance.
(2) In this section:
conduct of a sexual nature includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.
In Ewin v Vergara at [27] Bromberg J explained the meaning of “unwelcome” for the purposes of s 28A:
In the context of conduct which is directed (intentionally or not) by one person to another or others, “unwelcome” simply means conduct that is disagreeable to the person to whom it was directed. In Aldridge v Booth (1988) 80 ALR 1 at 5; 15 ALD 540, Spender J described unwelcome conduct as conduct that was not solicited or invited and was regarded as undesirable or offensive by the person to whom it was directed. That understanding was adopted by Wilcox J in Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 at 247; 85 ALR 503 at 531 (Hall) and by Mansfield J in Poniatowska v Hickinbotham [2009] FCA 680 at [289] (Poniatowska).
In Spencer v Dowling [1997] 2 VR 127 at 156, Hayne JA considered the meaning of “sexual advance”. His Honour observed that “[i]n ordinary usage, “advance” may mean (as the Oxford English Dictionary 2nd ed. tells us) “a personal approach, a movement towards closer acquaintance and understanding; an overture” including an amorous overture or approach. Whether or not in a particular case an approach or overture amounts to a “sexual advance” may involve difficult questions of fact and degree. Not every proposal for social contact will be a sexual advance.
As Bell P and Payne JA observed of the phrase “other unwelcome conduct of a sexual nature” in the analogue of s 28A in the Anti-Discrimination Act 1977 (NSW), it is “of broad import” and “should not be read down or confined by limits or restrictions which do not appear in the statute”: Vitality Works Australia Pty Ltd v Yelda (No 2) (2021) 105 NSWLR 403 at [97]. Over a decade earlier, in Poniatowska v Hickinbotham [2009] FCA 680 at [294], Mansfield J acknowledged that s 28A(1)(b) and (2) were intended to extend the circumstances of sexual harassment beyond the scope of s 28A(1)(a) but said that he thought “it involves some conduct which invites or otherwise explores the prospect of the object of such conduct participating or engaging in some form of sexual behaviour or which suggests that the object of such conduct may have done so or may do so, or is a person of a character empathetic to such behaviour”. That said, his Honour added that it is neither necessary nor appropriate to set the outer bounds of “conduct of a sexual nature”. And in Vitality Works at [105] Bell P and Payne J agreed.
As Perram J observed in Hughes (t/as Beesley and Hughes Lawyers) v Hill (2020) 277 FCR 511 at [21]–[25] (Collier and Reeves JJ agreeing at [1] and [2] respectively), there are essentially three elements to the definition in s 28A. First, the Court is required to determine whether any of the forms of conduct mentioned in subs (1) have occurred. Obviously enough, that is a question of fact. Second, if such conduct occurred, it must have been unwelcome to the person harassed, whom I shall call the complainant. That, too, is a question of fact. But it is a subjective question, the answer to which turns only on the attitude of the complainant at the time the conduct took place. Third, even if these two elements are satisfied, the ambit of the section is limited by an objective criterion, namely that the unwelcome conduct occurred in circumstances in which a reasonable person would have anticipated the possibility that the complainant would be “offended, humiliated or intimidated” by it.
In other words, it is not enough that the conduct was unwelcome. Nor is it enough that the complainant was offended, humiliated or intimidated by it. If the circumstances were such that a reasonable person would not have anticipated that was a possibility, the definition is not satisfied and the case must fail.
In Hughes at [26], Perram J explained that for the purposes of determining whether the objective criterion is satisfied:
[T]he reasonable person is assumed by the provision to have some knowledge of the personal qualities of the person harassed. The extent of the knowledge imputed to the reasonable person is a function of the ‘circumstances’ which the provision requires be taken into account. Mention has already been made of the nature of the relationship between the harasser and the harassed … The canvas is broad.
The intention of the alleged harasser is entirely irrelevant. Bell P and Payne JA remarked in Vitality Works at [98]:
As to the subject matter, scope and purpose of the Anti-Discrimination Act, it cannot seriously be suggested that the subjective intention of the alleged perpetrator has anything to do with proof of the statutory prohibition. If it were otherwise, an important societal norm would rest on the subjective opinions of the putative sexual harasser. In effect, the greater the subjective tolerance of sexually inappropriate conduct on the part of the sexual harasser, the more difficult sexual harassment would be to prove. That conclusion needs only to be stated to be rejected.
Moreover “conduct of a sexual nature” may be explicit or implicit, as the Court of Appeal recognised in Vitality Works. And conduct which, when considered in isolation, appears to have no sexual connotation may still amount to “conduct of a sexual nature” or, for that matter, a “sexual advance”. The conduct in question must always be assessed in its context: see, for example, Kraus v Menzie [2012] FCA 3 at [45] (Mansfield J). Indeed, as Bell P and Payne JA said in Vitality Works at [101], in determining whether particular conduct meets the description of “other unwelcome conduct of a sexual nature”, “context is everything”. In Kraus, with respect to the presentation of a gift by an employer to an employee, Mansfield J concluded that, having regard to the nature of the gift (a jacket) and the fact that “the occasion took place overtly”, his Honour was not persuaded that the conduct had “sexual undertones”. He acknowledged, however, that:
The conclusion would or might be different if there were repeated unsolicited gifts, which in fact were unwelcome, even if the gifts were not patently sexual in nature, as their character may be determined from all the circumstances.
I respectfully agree with the observation of McCallum JA in Vitality Works at [125] that:
The sexualisation of women in the workplace often isn’t [explicit]. Innuendo, insulation, implication, overtone, undertone, horseplay, a hint, a wink or a nod; these are all devices capable of being deployed to sexualise conduct in ways that may be unwelcome … The suggestion that conduct cannot amount to sexual harassment unless it is sexually explicit overlooks the infinite subtlety of human interaction and the historical forces that have shaped the subordinate place of women in the workplace for centuries. The scope of the term “conduct of a sexual nature” in s 22A of the Anti-Discrimination Act is properly construed with an understanding of those matters.
The same must be said of the identical expression in s 28A of the SDA.
Furthermore, the failure to make a contemporaneous complaint or to inform the alleged harasser at the time that the conduct in question is unwelcome does not (at least without more) signify the converse.
The evidence
Mr Grew’s feelings for Ms Taylor
It is common ground that in early January 2020 Mr Grew declared his feelings for Ms Taylor. I will come to that in due course. But that was not a sudden development.
In his evidence in chief Mr Grew testified that he started to develop some feelings for Ms Taylor over December 2019. In cross-examination, however, he clarified that that was the time he realised he had feelings for her. The two are not necessarily synonymous.
It is entirely possible, if not likely, that Mr Grew’s feelings for Ms Taylor had developed earlier, perhaps much earlier, whether or not he recognised it at the time. In cross‑examination, he accepted that Ms Taylor was an attractive woman, describing her as “a pretty person”. They worked in close proximity to each other and, it seems, quickly developed a close working relationship that was pleasurable to both of them, at least for a period of time. They discussed all manner of things during working hours, some work-related, some not.
It was put to Ms Taylor in cross-examination that it would not be unusual for her to seek Mr Grew’s attention by touching his shoulder or squeezing his arm. She accepted that she would tap him on the shoulder but denied squeezing his arm. In cross-examination Ms Taylor revealed that, when she would place finished products on her hand to see how they looked, Mr Grew would come over and touch her hand, without being invited to do so. Before she knew he had feelings for her, she had had no difficulty with that. Afterwards, however, it made her feel uncomfortable.
On 10 August 2019, four months before Mr Grew says he started to develop feelings for Ms Taylor, Ms Vu sent the following text to Ms Taylor:
Ms Taylor agreed she would not tell Mr Grew.
Ms Vu conceded in cross-examination that she believed Mr Grew had feelings for Ms Taylor at this time. While this matter was not explored further, for reasons which will become apparent I have no doubt that, by this time, or indeed earlier than then, Mr Grew had feelings for Ms Taylor in that he was attracted to her and that some of the gifts were, at least in part, an expression of those feelings.
The gifts
The allegations
Ms Taylor alleged that between September 2018 and March 2020 Mr Grew gave Ms Taylor a total of 19 gifts, which were both unsolicited and unwelcome:
(1) a quilted black Chanel coin purse;
(2)a platinum ring with emeralds and diamonds (emerald and diamond platinum ring);
(3)an 18-carat white gold bezel set (Hydra) ring incorporating a sapphire she had purchased (Hydra ring);
(4) a 14-carat gold six stone diamond necklace (six stone diamond necklace);
(5)a small round cut peach sapphire he purchased at an overseas gem fair (peach sapphire);
(6)a 14-carat diamond cluster necklace incorporating the peach sapphire (diamond cluster necklace);
(7) a jade bangle;
(8)$2,000 in cash which he described as an early Christmas bonus to assist with her savings for purchasing a property;
(9)a massage at a local shop during work hours;
(10)a pair of diamond “Gemini” stud earrings (Gemini stud earrings);
(11)a silver pinkie signet ring (silver signet ring);
(12)a black sequinned Michael Kors bomber jacket, which retailed for $548 (Michael Kors bomber jacket);
(13)a $200 MECCA gift card (MECCA gift card);
(14)a 14-carat white gold hammered band ring (white gold hammered band ring);
(15)a plain 5 mm silver ring (5 mm silver ring);
(16)a plain 10 mm silver ring (10 mm silver ring);
(17)a pair of Stuller gold hoop earrings (Stuller gold earrings);
(18)a 14-carat gold pinkie signet ring (gold signet ring); and
(19)a channel set diamond ring.
The extent of the dispute
The respondents accepted that the Chanel coin purse, the jade bangle, and the silver signet ring were gifts but put in issue the allegations that Mr Grew gave Ms Taylor any of the following items: the gold signet ring; the channel set diamond ring (a stock item he had seen her wear from time to time); the white gold hammered band ring; the 5 mm silver ring; and the 10 mm silver ring.
The respondents accepted that Mr Grew gave the other items to Ms Taylor but denied that they were unsolicited and/or gifts.
The respondents also disputed that statements allegedly made, and text messages sent to, Ms Taylor, praising her and her appearance were unsolicited.
In the event that the items and remarks are found to have been unsolicited, the remaining questions are first, whether the conduct was “unwelcome conduct”, “conduct of a sexual nature”, and/or a “sexual advance”; second, whether the conduct took place in circumstances in which, having regard to all the circumstances, a reasonable person would have anticipated the possibility that Ms Taylor would be “offended, humiliated or intimidated”; and third, whether Mr Grew contravened s 28B(2) of the SDA.
Ms Taylor gave evidence to support the allegations relating to all the alleged gifts except for the channel set diamond ring.
Despite the absence from Ms Taylor’s evidence of any mention of Mr Grew giving her a channel set diamond ring, it was put to Mr Grew in cross-examination (without objection) that, having seen her wear the ring, he told her she could have it if she liked. Mr Grew rejected the proposition. Consequently, there is no evidence to support the allegation in the pleading that the channel set diamond ring was a gift.
In evidence, Mr Grew agreed that he gave Ms Taylor all these things, except for the gold signet ring, the channel set diamond ring, the white gold hammered band ring, the 5 mm silver ring and the 10 mm silver ring.
He also agreed that many of these items were gifts. He sought to explain them, however, by reference to a reciprocal culture of generosity at the workplace and by pointing to gifts he had made to other employees as well. He also claimed that Ms Taylor had asked for many of them.
2018
The Chanel coin purse
The first gift Ms Taylor received from Mr Grew was the Chanel coin purse. She testified that one day in September 2018 Mr Grew approached her in the office holding a Chanel bag (which I take to be a cloth bag featuring the Chanel logo which contained the purse), saying: “Hey. This is for you. Happy birthday. You bring so much value to the company and this is just a token of that”. Ms Taylor said that she was “quite shocked to see a Chanel bag”, “caught off guard”, and “quite put on the spot because it seemed quite extravagant”. She said it made her feel “a bit overwhelmed” but she accepted the gift because she did not want to seem rude or ungrateful. In cross‑examination she rejected the proposition that, by accepting the purse, thanking Mr Grew and holding on to it, she welcomed its receipt.
In examination in chief Mr Grew was asked whether he was able to provide any context for the gift. This was his answer:
I have a – a leather business card holder that I used and she mentioned that she really liked it, and it was around her birthday, I was looking up leather business card holders for women, and came across this one which is on – from memory, it was on eBay, but it could have been on, like, Gumtree or some classified thing. And it was located in the city, and it was about $130 or something, and I went to pick it up from a lady that lived in an apartment building on the corner of Kent Street and King Street, there’s a couple of apartment buildings there. She was selling a number of, kind of, designer label things of various types.
He went on to say that he gave her the purse as a birthday gift. He was asked whether she said anything at the time. His reply was not entirely responsive. It was that she was “very happy” and “really grateful”. He said she did not display any discomfort or embarrassment.
The emerald and diamond platinum ring
This was a ring consisting of a platinum band, with a large emerald bordered by two smaller emeralds and two diamonds.
Ms Taylor gave evidence that, in around September 2018, Mr Grew asked her to start “designing pieces and creating some layouts for pieces”. She came across some emeralds in the safe at work and created a layout which appealed to her. She then approached Mr Grew and asked whether it would be “okay” if she created a ring for herself. He readily agreed. Mr Grew’s evidence was to the same effect.
She testified that he then informed her “[w]e do it at a wholesale cost for staff”. She said she asked him to get back to her with “some pricing” but, while he agreed to do so, he never did.
After the ring was made, Mr Grew approached her and asked to see the ring on her hand. She obliged and inquired: “How much do I owe you for this?” Mr Grew replied: “I don’t want any payment. It’s a gift. You bring so much value to the company”. Ms Taylor was “quite shocked and overwhelmed” as this was the second gift she had received from Mr Grew within a couple of weeks. Again, she thanked him because she did not want to offend him or appear ungrateful. It was put to her in cross-examination that she did not indicate any hesitation in accepting the gift. She rejected the proposition. She said she paused to think about it before thanking him.
Ms Taylor estimated that the value of the ring was around $4,000 to $5,000 and that the cost price was around $1,500 to $2,000. In cross-examination, however, it was put to her that the materials were relatively inexpensive (about $390). Ms Taylor did not recall whether Mr Grew had told her that the emeralds were “old stock”. She said she did not know whether the cost of the platinum would have been $180, the main emerald $90 and the small emeralds $30 each, as suggested, and she disagreed with the proposition that the diamonds would have cost $30 each.
Mr Grew was not invited to comment on much of Ms Taylor’s evidence. Mr Grew said that he did not recall asking to be paid or receiving any offer of payment. Importantly, however, he agreed that the ring was a gift.
Otherwise, his evidence was broadly, though not entirely, consistent with what was foreshadowed by the cross-examination of Ms Taylor. He testified that the two diamonds and two smaller emeralds were worth around $30, that the larger emerald was worth around $100 and the platinum would cost around $180. He did not provide an estimate of the cost of labour or an indication of its retail value. Indeed, the same is true in relation to all the jewellery items in question.
When asked why he did not seek payment for the ring he said:
The stone had been sitting in the safe for some time. It hadn’t been used. I didn’t really see it being used in the foreseeable future. It was of fairly little consequence to me and if it was an item that Ms Taylor in this instance or a member of staff wanted, from my point of view it’s an item of the company which also advertises the company. It’s beneficial for the company for them to be wearing it, and I would prefer that they asked me about these kind of items if it’s something that they want because then I know that they’re not stealing, and these sort of items are overall fairly inconsequential.
In cross-examination Ms Taylor accepted that in around June 2020 she asked Mr Grew to remake the ring in yellow gold. She did not recall whether Mr Grew said that he would take the old platinum metal in exchange for the yellow gold such that no payment was required. Mr Grew testified that he told her that they could remake the rings and then exchange the original metal in lieu of payment.
The Hydra ring
Ms Taylor said she received the ring in about September or October 2018 in the following circumstances.
Ms Taylor had designed a ring for the Grew & Co stock designs, called the Hydra, and she had also recently purchased a sapphire for herself. She asked Mr Grew whether it would be alright if she made (by which she meant designed) a Hydra for herself. He readily agreed. Again she asked him to “get back to [her] with pricing”. Again he did not.
After the ring was made, Mr Grew approached her and asked to see it on her hand. She asked how much she owed him. He replied that he did not want any payment and she should “consider it a gift for doing such good work”. She testified that she felt “uncomfortable and overwhelmed” as “it started to feel a little bit like special treatment at that point”. As she had “never been in a situation like that before”, she “didn’t really know what to do” and “didn’t want to jeopardise [her] working relationship with him”. In cross-examination she maintained that she did not know “how [Mr Grew] would have reacted” such that she was “scared” he would react in a way that would be “awkward and uncomfortable”. She did accept however that he had not done anything to give her that indication.
Mr Grew testified that there was “never any request for payment and never any offer made” in relation to this ring. He said that he did not request payment because it was “around the time of [Ms Taylor’s] birthday”, was made using a stone she had purchased; and because the “overall costs of the materials [was] fairly inconsequential”. He estimated that the white gold was worth around $180, the two baguette diamonds around $60 each, the two trillion cut diamonds around $120 or $140 for both of them (that is to say the materials cost a total of $420 to $440). He said that, at the time Ms Taylor was an employee, his practice was not to charge staff for making items of jewellery.
The white gold hammered band ring and the 5 mm and 10 mm silver rings
Ms Taylor testified that in December 2018 she received from Mr Grew a white gold hammered band ring, a 5 mm silver ring and a 10 mm silver ring. She said that she wanted to hide some recent tattoos from her parents and mentioned to Mr Grew that she was worried about her father seeing them. After the conversation they exchanged text messages that indicate that Mr Grew told her that Mr Tanaka could “knock up some wide silver ones before Christmas”. She testified that “some time after these text messages” they “discussed payment at a wholesale cost in the office”.
Ms Taylor testified that, after the rings were made Mr Grew approached her and asked to “see them on”. She obliged. She asked him how much they would cost and he told her not to worry about payment. She adhered to this evidence in cross-examination and denied that it was merely an assumption on her part that Mr Grew “gifted” her the rings.
Mr Grew testified that, after the exchange of texts on 16 December, they had no further conversations about the rings. Nonetheless, he admitted it was “likely” that he would not have required Ms Taylor to pay for them.
Mr Tanaka testified that he made “a couple of silver rings” for Ms Taylor to cover up some tattoos on her hand. He said he did not have a discussion with Mr Grew about the making of those rings; rather, Ms Taylor asked him to “make her some rings to hide her tattoos”. He said that “straight after” he made the rings he gave them to Ms Taylor, who was “really happy” to receive them. In cross‑examination he disagreed with the proposition that his recollection might be wrong.
Mr Tanaka had a recollection of the 14-carat white gold hammered band ring but did not recall that it was included in the same job packet.
2019
The six stone diamond necklace
On 28 March 2019, Ms Taylor sent the following text to Mr Grew:
“Hey I still need to buy a chain for my little diamond necklace right???
Ms Taylor testified that she had designed a “14-carat yellow gold diamond necklace” that she “wanted to get made up at a wholesale cost” and this text message referred to the “chain that was to go with it”. She explained that in early 2019 she had approached Mr Grew and told him that she would like to make a delicate diamond necklace for herself “at a wholesale cost”. She said she asked him to “let [her] know how much that will come to” to which he replied: “Of course”.
On 18 April 2019 Mr Grew informed Ms Taylor, via text, that he had finished her chain. In the text conversation that followed, she wrote: “Let me know what I owe you for the necklaces!”. She testified that she used the plural “necklaces” because she was also referring to another necklace that had “joined the production line while the first necklace was being made”, namely, the diamond cluster necklace (discussed below).
In cross-examination Ms Taylor accepted that Mr Grew obtained the chain after she had indicated she needed one and after she asked him to obtain one from the supplier.
Mr Grew testified that he did not request payment for the six stone diamond necklace or the diamond cluster necklace because “they were for staff and items that Fiona indicated that she wanted” and he was “happy to offer items to staff members”.
He estimated the value of the six small diamonds was about $7 to $15 each, the chain $60 and the housings that hold the diamonds around $18 in toto, making the total cost of the materials $120 to $168.
The peach sapphire and the diamond cluster necklace
In December 2018 Ms Taylor gave Mr Grew “a session with [her] healer” as a Christmas present. On 29 December 2018, presumably in response to an inquiry from Mr Grew about how she was feeling, Ms Taylor informed Mr Grew that she was feeling fine and that her “healer” told her she needed an orange stone like carnelian (a semiprecious stone) and she should make a necklace to wear for “protection”. He replied: “Carnelians cool. What do you need protection from?”. Ms Taylor answered that she had “an entity attached to [her] from [her] brother”, who was suffering from depression, which the healer “cleared” but that the healer told her that her throat was her “creative self-expression” and it needed to be kept open and protected. Mr Grew responded: “Wow, ok well better [get] that sorted out pronto”. In cross‑examination she said that she shared this with Mr Grew because they “had developed a nice friendship, and [they] would often talk about what [they] did on the weekend”.
Ms Taylor testified that, after returning from a gem and mineral fair overseas, Mr Grew “presented” her with a round peach sapphire. Ms Taylor recalled that he approached her and said:
I found a stone for you overseas at the gem fair. I would really like you to make this up into a necklace. I know your healer told you [that] you needed an orange stone.
Ms Taylor testified that she was “quite shocked” that he had remembered their conversation and that he had “personally selected a stone” for her. She said that she did not want to “seem ungrateful because “he ha[d] gone out of his way to get it for [her]” so she thanked him. She testified that in comparison to carnelian, the stone she mentioned in their text message exchange on 29 December 2018, a sapphire is “much more desirable” and a “more expensive and hardwearing precious stone”.
On 9 May 2019, Mr Grew sent her this text message:
Hey also about your pendants, I dont want any money for them I want you to have them. I appreciate everything you do and maybe it just a small sign of that. I wanted to tell you but haven’t had the chance. Enjoy your break, it sounds amazing[.]
She replied:
Aww man, thank you so much! I had every intention to pay for them but that’s really amazing of you, thank you[.]
Ms Taylor testified that she “felt a little awkward”, “uncomfortable” and “overwhelmed at the same time” as “it was definitely starting to feel like special treatment” since they had “got into a weird cycle” and “a pattern of behaviour” of “crossing boundaries”. She estimated that the sapphire would have cost “a couple of hundred dollars” and that, once made up, the necklace could have cost upwards of $2,500.
In cross-examination she accepted that, in her text, she was showing her appreciation, exhibited no reluctance in accepting the necklaces as gifts, and that she did not insist on paying. She also agreed that she did not return the necklaces at any stage. In re-examination she maintained that she felt “uncomfortable and a bit awkward”.
Mr Grew confirmed in his evidence that he had bought the stone at a jewellery fair and that he “gifted” the necklace to Ms Taylor. He estimated the cost of the stone at between $100 and $200, with the chain costing around $60 and the gold holding the stones at about $90 to $100. He said that Ms Taylor had added other stones on each side but he was unable to recall the value of them.
He testified that he did not request payment for the stone because “Ms Taylor intended it for herself” and the stone was “part of a parcel of stones that [he] had purchased” and the value was “fairly inconsequential” from his point of view. He said that Ms Taylor had seen the stone and liked it. He was not asked why he did not request payment for the other components of the necklace.
In cross-examination Mr Grew accepted that Ms Taylor had not asked for a sapphire, that carnelian was “a much cheaper stone”, and that she had not asked him to “get anything for free”. He conceded that he “took it upon [himself] to … gift [it] to Ms Taylor”. Despite this, he maintained that it was not inaccurate to say (as pleaded in para 9(f) of the defence) that the gift was unsolicited. He claimed that the sapphire was not unsolicited because she had specifically asked him to find one in a conversation they had before he attended the fair.
The jade bangle
On 2 July 2019 Ms Taylor received a jade bangle from Mr Grew. As I mentioned earlier, it is an agreed fact that this was a gift.
Ms Taylor gave the following account of the circumstances in which she received the gift.
Mr Grew came into their shared office, shut the door and told her that he had a jade bangle for her that he acquired at an overseas gem fair. He said to her, “jade is all about luck, you should look up the properties of it”. She recalled that at the time she was “quite caught off guard”. The gift was unexpected, especially since it was not something she would even like. Nonetheless, she thanked him because she did not want to seem rude or ungrateful.
At short time later, Mr Grew’s ex-wife, Gabrielle, walked into the office, saw the bangle, and told her that Mr Grew had given her “that same bangle”. Ms Taylor recalled feeling “extremely uncomfortable” and “extremely awkward”. Ms Taylor spoke to Mr Grew about her conversation with Gabrielle and testified that he seemed surprised. While she could not remember exactly what he said, her impression was that he seemed “caught out”.
In cross-examination, Ms Taylor was referred to a text she sent later that day to Mr Grew:
Hey, thanks so much for my jade bracelet! It’s very thoughtful.
She accepted that the unicorn emoji was her way of showing appreciation to Mr Grew for the gift.
When it was put to her that he never said that he got the bangle for her she did not agree. She said that she did not recall seeing a pouch with a jade bangle in it on Mr Grew’s desk for five months, denied that she had told Mr Grew she was feeling down that day, and that he said “[h]ere you go. You can have this” when he gave her the bangle. She accepted that she did not attempt to refuse the bangle and did not return it at any point.
This was Mr Grew’s account.
At an international gem fair in Hong Kong in February 2019 he purchased a number of stones from a supplier who he had worked with over the years. As this occurred around the time of Chinese New Year, the supplier’s wife gave him the jade bangle and explained that it was to bring luck and offer protection.
On the day he gave the bangle to Ms Taylor, she had been telling him that she was “feeling exhausted” and had “low vibrational energy”. He recalled the conversation he had in February 2019 and showed Ms Taylor the bangle, explaining that it was “meant to absorb all the negative energy”. He recalled that she was grateful and he told her that she could have it. He testified that their later text conversation followed on from their conversation in which he told her to look into the properties of jade because “it sounded similar to what she was saying”.
He testified that he had previously bought a lavender jade bangle for Gabrielle in around 2007, that he had not had a conversation with Ms Taylor about that gift, and that Ms Taylor did not tell him about a conversation she had with Gabrielle about hers. He maintained this position in cross-examination.
$2000 cash
In early September 2019, in conversation with Mr Grew in the office, Ms Taylor expressed frustration about the fact that she attended several auctions and “it seemed as though [she] needed to save about $25,000 more to be in with a chance for the type of apartment [she] would like to buy”. She said that Mr Grew replied in words to the following effect: “Yes, that’s really difficult. I’d like to give you some money towards your savings for your first property”. She said she declined, saying “No. That’s not your problem”.
In his evidence Mr Grew said he had had a conversation with Ms Taylor in which she showed him the types of apartments she could afford to buy and those she would like to buy but would require an increase in her deposit by $25,000.
After that conversation, in about the middle of the month, Mr Grew raised the subject again in a text message. Again, Ms Taylor pushed back. This is the contemporaneous exchange:
MR GREW: I’ll give you something towards that extra that you need
MS TAYLOR: Woah. No way!
You have so much going on as it is!
MR GREW: I want to see you achieve your goal
MS TAYLOR: I really appreciate that, but it’s so not your problem!
MR GREW:Take it as a sign of appreciation for who you are and everything you do[.]
The next day Mr Grew came into the office with an envelope containing $2,000. He insisted she take it. She said she could not accept it. He replied: “Consider it an early Christmas bonus”. Ms Taylor testified that in response she thought she said something like: “If it’s a Christmas bonus then okay, thank you”. She said she was “a bit tired of saying no” and felt like she had to accept it as she did not want to seem rude or ungrateful. When asked about whether she had any concerns about her employment at Grew & Co at this time, she answered:
I was definitely starting to feel anxious. I felt kind of trapped. I didn’t know how to – well, really, what to do. I – he always presented it in a way where I couldn’t say no or it would be quite rude to say no. So, yes, I felt like I was in a really difficult position, that I had to placate my boss to keep my job.
Mr Grew confirmed in his evidence that he gave her $2,000. He said “she was really grateful” and did not indicate any hesitation in accepting the money. He recalled encouraging her to do her best to achieve her goal.
In cross-examination Ms Taylor admitted that she did not return any of the money at any stage. She also accepted that there was nothing inherently improbable about Mr Grew wanting to reward her for doing a good job when she was, as she believed herself, doing a good job.
Later that year, Ms Taylor also received a Christmas bonus of $1,000.
Mr Grew gave evidence about giving cash to other employees, a subject I deal with below.
The massage
Ms Taylor testified that, on 6 September 2019, following a conversation with Mr Grew about a colleague and at a time when she felt “quite stressed out at work”, he “randomly” called to say he had booked a massage for her. He told her to take some cash from the envelope in his “workshop box”. She thanked him. She said she felt “a bit shocked” because it seemed to come out of nowhere. Since he had already made the booking, she felt obliged to go.
Mr Grew then sent her a text message with the name of the masseuse, the address and phone numbers of the business, directions about how to find it, and a photograph of the entrance. Ms Taylor replied: “That’s very thoughtful, thank you!!!” She took the money and attended the appointment. Later that day Ms Taylor sent Mr Grew a text message saying: “I fully look like I’ve had a massage hah” and “[s]he’s was super cute! I needed that- thanks again!”
It was put to Ms Taylor in cross-examination that she had had a telephone conversation with Mr Grew in which she told him that she needed to leave work early because she was getting “neck and jaw tightening” as a result of “a situation regarding a colleague” that had arisen at work. She accepted that her text message reply reflected that she was grateful for the massage. But she explained that when she wrote that she “needed” the massage, she did not mean that “he had to provide it for [her]”. In re-examination, she said that she felt “a bit weirded out and uncomfortable”, despite what she had said in the text message.
If Mr Grew’s evidence is to be accepted, his call was not, or at least not entirely, “random”. On his account, earlier that day Ms Taylor had been “venting” about “the frustration that she was feeling from [a] colleague”, and that she told him it had caused her neck and jaw pain. He said she mentioned that she might leave work early. He said that put him in a difficult position because he was moving house and could not lock up the store himself. In the hope that it might alleviate her symptoms, he said he booked her in for a half hour massage (as he recalled it) at a place only a block away from the store and told her to take the money out of petty cash.
It is common ground that at no time did Ms Taylor communicate to Mr Grew that she felt any embarrassment or discomfort by him paying for a massage.
Mr Grew’s unchallenged evidence was that he had suggested to another employee that she see a chiropractor during business hours because she could not move her neck and paid for the consultation after she told him she was unable to afford it. He paid for three-month gym memberships for Mr Tanaka and Mr Snow who were experiencing “difficult” times and he believed it would be good for both of them to “have an outlet”. And during the COVID-19 lockdown he paid for four visits to a psychologist for Ms Nicholson-Black, who was in Melbourne away from work and feeling “quite isolated”.
While he accepted that a massage could be “a personal thing”, Mr Grew rejected the suggestion put to him in cross-examination that the massage was “simply [his] way of showing his affection towards Ms Taylor”.
The Gemini stud earrings
The Gemini stud earrings were a stock item which Grew & Co sold to customers. They were earrings consisting of two small diamonds positioned side by side. Mr Grew estimated their “cost value” at around $200.
Ms Taylor testified that in or around November 2019 she and Ms Vu would chat about how they quite liked “these new earrings that had come into stock” and that “Mr Grew knew this”. One day he presented them with a pair each and said something like, “here’s a pair of Gemini studs for each of you”. She testified that she was “shocked” as it was “out of the blue” and thanked him because Ms Vu was there.
Ms Taylor testified that she had a conversation with Mr Grew later that day in which she asked him how much the earrings cost. She recalled that he replied: “I don’t want any payment for them”. Again she felt “shocked”. To avoid appearing ungrateful, she thanked him.
Later, Ms Vu asked Ms Taylor whether Mr Grew had asked her to pay for the earrings. She recalled that Ms Vu told her that he requested “around $200 cash for [hers]”. She testified that she felt “extremely awkward” because Ms Vu “seemed quite frustrated” or “even jealous” and it was “clear” that Ms Taylor was receiving special treatment. In cross-examination she accepted that after this conversation she knew the cost price for the earrings and did not attempt to pay Mr Grew for the earrings or return them.
In cross-examination Ms Taylor’s attention was drawn to a text message she sent to Mr Grew on 20 November 2019 in which she wrote: “ThAaaaank you for the studs!!!” followed by a unicorn emoji. She accepted that this was an indication of her “appreciation and gratitude” at the time.
In her evidence in chief Ms Vu denied that she was there when Mr Grew presented Ms Taylor with her earrings. She said she became aware of the gift when she saw Ms Taylor wearing them. She decided she wanted a pair too so asked Ms Taylor how much she paid for hers. Ms Taylor told her that she did not pay for them; Mr Grew gave them to her. Ms Vu said she placed an order for a rose gold pair and paid Mr Grew $280 for them. She was not cross‑examined on this evidence.
On 28 November 2019 Mr Grew sent Ms Taylor a text in which he wrote:
Hey I didn’t get to see your Gemini earrings on. Can you wear them tmw? Unless your planning on wearing something else that is[.]
Ms Taylor replied::
Haha sure! I love them thank you!!
Ms Taylor denied that this conversation occurred because she had asked to pick another pair of earrings since her pair was mismatched.
Mr Grew’s account was as follows.
Ms Taylor tried on a pair of the Gemini stud earrings. She told him she loved them and that she really wanted a pair of diamond earrings. Not long afterwards, he was working on several pairs of the earrings in a mixture of coloured golds. When he finished them, he offered a white gold pair to Ms Taylor and told her that, if she wanted them, she could have them. He said he gave Ms Vu a rose gold pair at the same time (“she wanted a rose gold pair”). He added that he offered to give them to her but she insisted on paying. When asked in chief why he did not request payment from Ms Taylor he replied:
[I]t’s not a huge issue for me. From my personal point of view I think that – from an employment point of view I get better results from people by being good to them and if staff or Ms Taylor or anybody else wants to wear an item that we make, more often than not the value is fairly insignificant in the overall scheme. So I’m happy for them to have it.
In cross-examination, after initially maintaining that the earrings were solicited because “she told [him] that she wanted a pair”, Mr Grew accepted that he approached Ms Taylor with the Gemini stud earrings and “gave them to her as a gift”; that she did not ask him to give them to her; that he volunteered them; and that his conduct in making and offering of the earrings to Ms Taylor was unsolicited.
The silver signet ring
It is an agreed fact that in about November or December 2019 Mr Grew gifted Ms Taylor a silver signet ring.
Ms Taylor’s account was that she was sitting in her office with Mr Grew when “out of the blue” he said to her: “Hey, I found this silver signet in the safe. Can you try it on?” Ms Taylor obliged and, when he saw that it fit, he replied: “You can keep this as a gift”. She felt “a bit awkward” and “a bit shocked” as the gift “came out of nowhere”. Nevertheless, she thanked him. In cross-examination she accepted that she did not indicate to Mr Grew that the gift was unwanted and did not return it at any time.
Mr Grew did not dispute the substance of the conversation as recounted by Ms Taylor and his evidence was essentially consistent with it. His explanation was that he had discussed with Ms Taylor incorporating signet rings into Grew & Co’s inventory and remembered that he had a “silver sample” that had been sitting in the safe for around 12 years. He said that at the time he wondered whether the size of a signet ring would be comfortable on a woman’s hand and asked Ms Taylor whether, if he sized the ring down, she would wear it and give him feedback on how it felt. He recalled that she later told him that it fit well and he told her that she could keep it as it was sized to fit her. He said that silver is “pretty inexpensive”. He estimated that the cost of the material “might be somewhere around $60”.
Michael Kors bomber jacket
Mr Grew purchased this gift in early December 2019.
December 2019, it will be recalled, was the time Mr Grew said he first realised he had developed feelings for Ms Taylor. The parcel containing the jacket arrived in the store on 6 December.
Mr Grew said that he paid $296.65 for the jacket and produced a receipt to support his evidence. While the receipt appears to indicate that the price was in fact $380.93 for the jacket alone (that is, excluding shipping), nothing was made of the apparent discrepancy.
Ms Taylor testified that when the package arrived she “felt a bit anxious”. She sent a text message to Mr Grew saying “Ps, can I take the box home” and later “how can I not be curious”. She accepted, in cross-examination, that this reflected that she was excited to open the present.
On 10 December 2019 he gave her the gift. She told him that she would prefer to take it home to open it. Ms Taylor testified that “it felt really personal” for him to have bought her clothing and that he had “obviously … assessed [her] body in some way and purchased an item for it”. She felt like they “had crossed a boundary at this point” and this made her feel “really uncomfortable”.
Her evidence was supported by a series of text messages she sent to a friend (Leanne) that evening:
Similarly, in a text to her sister, Sonia, she wrote of the jacket:
No, this is where it gets weird. Simon got it for me for xmas…
And I didn’t know if I should keep it or not
It’s Michael kors[.]
In her reply Sonia agreed it was weird. Ms Taylor also texted her saying:
Buying clothing is super person so o was slightly weirded out about it but being a bomber jacket I was like wel he just knows me well kinda thing. Don’t wanna look into it too much. Plus I think he did it Cos I mentioned getting him something but mai and I bought his a joint gift which is a backpack…
Ms Taylor explained that “it was an uncomfortable thing to look deeper into because [she] had to continue to work with Mr Grew in close quarters” and that “it was easier to kind of try to ignore the meaning behind it”.
Later that evening, she sent a text message to Mr Grew that said “[s]o, I love it” and “[t]hank you so much! Very cool”. In cross-examination, she accepted that this message indicated that she had considered her options and had decided to keep the gift. She said that she sent this message because she did not want to “acknowledge it at the office” and did not “want to seem ungrateful”. When it was put to her that this message was unprompted, unsolicited and that she reached out to Mr Grew, she maintained that she sent him this message because she was “worried” about appearing rude or offending him.
The next day Mr Grew closed the door of their shared office and asked her to try the jacket on in front of him. When “he saw that it was a bit fitted” he “suggested that we go up a size”. She then “awkwardly said yes”.
Mr Grew testified that the day after she took the jacket home, Ms Taylor told him that she loved it but thought it was too small, put the jacket on and asked for his opinion, and then asked him to exchange it for another size. He denied asking Ms Taylor to try the jacket on for him and denied closing the door to their office during this conversation. He said that Ms Taylor did not indicate any discomfort or embarrassment by the receipt of this gift.
In cross-examination he denied that in late 2018 he had a conversation with Ms Taylor about buying a bomber jacket for his wife. Mr Grew testified that Ms Taylor had mentioned in October 2019 that she wanted to get a sequinned bomber jacket (a proposition Ms Taylor denied in cross-examination) and that he bought it for her after she told him that she had bought him a Christmas present.
The MECCA gift card
The gift card was for $200. MECCA is a retailer of numerous brands of beauty and personal care products for men and women. Mr Grew gave Ms Taylor the gift card at the end of December 2019, after Christmas. It is common ground that he had purchased it for his ex‑wife and decided not to give it to her when he learned she had no intention of buying him a present. It is also common ground that he told Ms Taylor that and she suggested he use the voucher on himself. Contemporaneous Instagram messages confirm this.
In cross-examination, Ms Taylor denied telling Mr Grew that, if he did not use it, she would. But Mr Grew testified that he had a conversation with Ms Taylor in which she did say that and it was her offer to use it that accounted for his action:
I said I don’t know what to do with it and she said they do men’s things as well, and I said, like, I wouldn’t know where to start and there’s nothing that I need. And she said, “Well, I’ll use it if you don’t”, and I said okay and you can have it. I had lost the receipt. It got thrown out with the kids’ toy wrapping. So it really wasn’t any use to me. So I didn’t mind giving it to her.
Mr Grew also testified that Ms Taylor never indicated any discomfort or embarrassment in accepting this gift card.
2020
The gold signet ring
Ms Taylor testified that in March 2020, following Mr Grew’s confession of feelings and their trip to the USA (which I will come to), he approached her at work and presented her with the gold signet ring, based on the silver signet ring he had previously given her and in the same size, and asked her to try it on. She said he also told her he would “really like [her] to get something engraved on the face of the ring”, although Mr Grew denied this. According to a letter from the respondents’ lawyers relied upon in the victimisation case, the recommended retail price for this ring is $1,900.
Mr Grew denied ever “gifting” the gold signet ring to Ms Taylor. In response to her claim, he testified:
[F]rom that point, we made the similar version signet rings for men and women. They’re now currently featured on our website. And Ms Taylor would wear one of the gold ones from time to time, and it’s a – you know, it’s a fairly regular practice that staff members can take something from stock and – and wear it, and wear it that day or sometimes they might wear it, you know, semi-regularly. And it’s – it’s better for them to be – if a client comes in, it’s better for them to be wearing an item of our jewellery rather than someone else’s. So I’m happy for them to do that.
This evidence is at odds with the contemporaneous text messages.
On 4 March 2020 Ms Taylor sent Mr Grew a text message in the following terms: “Thank you so much for the signet, I really love it!” Mr Grew replied: “No problem. I feel like it needs something on it tho”. Although he admitted that he had started to develop the gold signet ring series in early 2020, Mr Grew claimed that his response related to the silver signet ring. Mr Grew admitted the messages were sent in March 2020, which was three or four months after he had given her the silver signet ring. In these circumstances I consider it to be highly unlikely that Ms Taylor’s message related to the silver signet ring and more likely than not it related to the gold signet ring.
Stuller gold earrings
Stuller is a business based in the US which supplied jewellery to Grew & Co.
Ms Taylor testified that one day in March 2020, when they were both in the office, Mr Grew presented her with a pair of gold hoop earrings supplied by Stuller in the following context:
[I]t was pretty normal to talk about jewellery in the office and things that we liked, and I had mentioned that I was looking for a pair of hoop earrings in a particular thickness. And Mr Grew purchased a pair and presented them to me out of the blue one day, when he had – he was unpacking a Stuller order.
Mr Grew said to her: “Hey, I got you those hoop earrings”. She replied: “Oh, you didn’t have to do that. How much were they?” He told her not to worry about payment.
Later Ms Taylor sent a text message to Mr Grew saying “I hope those hoops weren’t too expensive!” to which he replied “[n]ah they weren’t”. She then responded: “Haha ok, well, thank you!”. He wrote back: “You’re welcome:) Is the size ok?” She replied: “The size is perfect I should’ve checked stuller all along!”
Nonetheless, Ms Taylor testified that his purchase “came as a shock” and made her feel “a bit awkward and uncomfortable”. In cross-examination she said she accepted the gift because “he wouldn’t let [her] pay and [she] hoped he hadn’t spent too much money on [her]”. She acknowledged that she did not offer to pay in the text message exchange or in a verbal conversation afterwards but maintained that she offered to pay before the texts when he handed her the earrings. She admitted that she had not offered to return the earrings.
Mr Grew’s evidence was that he was prompted to purchase the earrings for Ms Taylor by a text message she sent him on 29 December 2019. On that day, Ms Taylor wrote: “Hey, do you think these are a good price $300usd for 14ct white gold hoops?”. She attached a link to an American jeweller’s website. Mr Grew replied to the text: “For you? We coukd probably get them cheaper if they are”. Ms Taylor confirmed they were for her but said: “I don’t need 14ct white gold, silver or 9ct is fine but I just wondered if it’d be cheaper or not! But I’m searching for the right thickness which seems to be 2mm”. Mr Grew then texted: “It should’ve too hard to find otherwise we can make them”.
As I have said, the history Ms Taylor gave to the psychiatrists is substantially consistent with her account to the Court. They were told about the 7 August text but neither of them placed any significance on it and the subject was not raised with them in oral evidence. I was not taken to anything in the medical history to indicate that before June 2020 Ms Taylor had a psychiatric disorder and there was no such evidence. Certainly, I was not taken to any evidence that she had previously seen or been referred to a psychiatrist. While she had seen a “psychologist” and “psychotherapist” previously, she was open about that, including with Dr Allnutt and Dr Parmegiani.
In cross-examination Ms Bulut drew Dr Allnutt’s attention to the handwritten notes of Mr Harradine, who was said to be a psychologist but is not registered as such. Rather, as Dr Parmegiani pointed out, he is a registered counsellor. Ms Bulut also drew Dr Allnutt’s attention to references in a GP’s records for a consultation with Ms Taylor on 27 September 2019 to “feeling tired – wakes ‘exhausted’ – for months” and that a blood test carried out on 1 October 2019 recorded that she had low iron. Dr Allnutt acknowledged that all psychiatric information would be relevant. It is questionable, to say the least, whether this material could fairly be characterised as “psychiatric information”. In any event, the respondents did not use the information to invite Dr Allnutt to offer an alternative explanation or cause for the symptoms with which she presented and exhibited to him. It was merely put to Dr Allnutt that it was possible that information “may have impacted” the answers he gave in his report to the questions asked of him, the diagnosis or the prognosis.
Dr Allnutt testified that it was hard to proffer an opinion based on snippets of handwritten notes, some of which are difficult to decipher, either because the handwriting was hard to read or the notes were abbreviated. He said that he was aware that Ms Taylor had previously seen a psychologist. He said it was possible there had been “a pre-existing condition, either obsessive-compulsive personality disorder or obsessive compulsive personality traits or a pre‑existing predisposition to anxiety” but it was difficult to give a definitive opinion. Importantly, the doctor was not invited to assume any of those alternatives and then asked what difference, if any, it would have made to his opinion.
Some of the material Dr Allnutt had not previously seen was provided to Dr Parmegiani and was annexed to his report. It is apparent that he did not regard it as significant. He testified:
Look, I agree with Dr Allnutt that Ms Taylor probably had a – a higher degree of anxiety than the average person before the alleged incidents, but at the same time I observe that my focus, generally, is on level of function, and there did not appear to be significant impairment of function in terms of working full time, relationships. We know she is exercising regularly, socialising. So if there was a degree of anxiety, and these notes would suggest that there was, then it didn’t have a significant impact on her daily activities.
Dr Parmegiani said he would take the note about OCD with “a pinch of salt”. He said he was not satisfied from the notes or his interview that there was any significant impairment of her daily activities as a result of anxiety before the alleged injury in the course of her employment with Grew & Co.
I accept this evidence. The evidence as a whole indicates that Ms Taylor is sensitive and has a predisposition to anxiety which made her vulnerable or susceptible to a condition of the kind the psychiatrists diagnosed. That was apparent to Mr Grew himself. But the respondents have to take her as they found her “with all [her] weaknesses, beliefs and reactions as well as [her] capacities and attributes, physical, social and economic”: Nader v Urban Transit Authority of New South Wales (1985) 2 NSWLR 501 at 537 (McHugh JA, with whom Samuels JA agreed). It is also apparent that she functioned well for the first two years of her employment.
Notably neither of the psychiatrists suggested Ms Taylor exhibited abnormal illness behaviour, sick role or malingering or embellishment of symptoms for secondary gain. Dr Graham George, a psychiatrist who examined Ms Taylor on 18 November 2020 for Grew & Co’s workers’ compensation insurer, whose report was provided to Dr Parmegiani and Dr Allnutt and was annexed to Dr Parmegiani’s report, was specifically asked whether there was any indication of such behaviour. He found none on his examination.
I think it is likely that, from time to time at least, after the disclosure in January 2020 Ms Taylor experienced some anxiety about her relationship with Mr Grew and her job security but that, more likely than not, there was no psychiatric disorder as such before her breakdown on 2 June 2020. There is no evidence of a pre-existing psychiatric injury. The psychiatrists were unanimous that, in the absence of any evidence of dysfunction before the alleged injury she had while working for Grew & Co, it would be difficult to reach a diagnosis of any pre-existing psychiatric disorder.
Both the experts were cautiously optimistic about Ms Taylor’s prognosis and were encouraged by Ms Taylor’s increase in working hours, particularly as it occurred in the context of the proceeding.
General damages
Ms Taylor claimed $250,000 for general damages and an additional sum of $50,000 for the aggravation of her psychiatric condition based on the acts of victimisation. She referred to the judgment in Richardson v Oracle Corporation Australia Pty Ltd (2014) 223 FCR 334 in which the Full Court (Kenny, Besanko and Perram JJ) determined that $100,000 was an appropriate sum for general damages for a woman who had been sexually harassed at work and who had also been diagnosed with an adjustment disorder with mixed anxiety and depressed mood. That award was substantially greater than most previous awards for sexual harassment. Kenny J observed at [95] that, “in making an award, a court necessarily has regard to the general standards prevailing in the community”.
Ms Taylor argued that times have changed. She submitted that, since Richardson, there has been “a further significant and fundamental shift in community standards and a much deeper appreciation in the community of the hurt and humiliation that victims of sexual harassment experience and the value of loss of enjoyment of life occasioned by mental illness or distress caused by such conduct”. She relied on a report of Sara Charlesworth, Professor of Gender, Work & Regulation at RMIT University in Melbourne. Prof Charlesworth has a PhD in legal studies from La Trobe University, a graduate diploma of government law, a BA (Hons) in political science and a diploma of social studies (social work) from the University of Melbourne. She has conducted extensive research into gender relations in the workplace for over 20 years. She is the co-author of the submission to the National Inquiry into Sexual Harassment in Australian Workplaces conducted by the AHRC, to which I referred earlier. Prof Charlesworth’s report (including the annexure) was admitted without objection and she was not required for cross-examination.
In their submission, McDonald and Charlesworth made the following observations:
Sexual harassment is problematic in a unique and corrosive way in that it strips away an individual’s identity, reduces the quality of working life, creates barriers to full and equal participation in employment across the life course and imposes costs on organisations. Experiencing sexual harassment often represents a turning point in the lives of workers, altering their progression through life-course sequences and hindering positive career and personal outcomes.
In her report, Prof Charlesworth expressed the opinion that over the last five years in particular workplace sexual harassment has become a matter of broad community concern and interest and that, with increasing community awareness, a deeper appreciation has developed of the nature and impact of sexual harassment and a greater community intolerance for it. She said that the increasing community intolerance was reflected in the policies and promises made by both major parties during the last federal election campaign and evident in general media reporting over the last decade. She concluded that there has been “a profound shift in the community and political understanding of the nature of sexual harassment”. She also considered that a range of social, political, economic and legal developments and the profile given to them in the media with personal stories, particularly of high profile victims, has increased community awareness of the consequences of sexual harassment. She said that was reflected in the attention paid by the media and politicians to the 2020 Respect@Work Report, which documented a range of consequences for victims of sexual harassment including negative effects on health and wellbeing; negative impacts on employment and career development; and significant financial consequences. She noted in particular a statement by the Champions of Change Coalition (formerly the Male Champions of Change) that:
Sexual harassment causes harm. It is significant and can be felt immediately, emerge over time and/or result in long-term trauma. The impacts are personal, varied and deeply affecting. The evidence of harms such as anxiety, depression, stress, relationship breakdowns, physical ailments, career consequences and financial loss caused by sexual harassment are all well-documented. The harm also extends to families, people who witness incidents and people within and outside of organisations who have to support those impacted, respond to or manage the behaviour.
Prof Charlesworth was asked to review awards for general damages made by courts since Richardson to see whether those awards reflected the shift in community standards and “the higher value the community places on the loss of enjoyment of life, emotional loss, and pain and suffering that victims of sexual harassment may experience”. Prof Charlesworth did not confine her review to court awards, presumably because there were so few. She also examined tribunal decisions. And she only reviewed decisions in the period between 2020 and 2022 of which there were three court awards: $70,000 in Vitality Works; $25,000 in Higgins v Orchard [2021] TASFC 12; [2021] EOC ¶93-946; and $120,000 in Hughes v Hill. She concluded:
The scarcity of sexual harassment decisions in Australia, when combined with decisions being made across potentially nine different state, territory and federal jurisdictions, makes it hard to identify trends or make any definitive conclusion about the extent to which awards of general damages in more recent Australian court and tribunal decisions reflect a shift in community standards and the higher value the community places on the consequences for victims.
Mr Mahendra referred to none of these judgments in this context. Rather, he contended that, in contrast to awards of general damages in personal injury and defamation cases, awards of general damages to victims of sexual harassment have barely changed since Richardson. His contention was based on an extremely selective sample: two personal injury cases from the Victorian Supreme Court (Mathews v Winslow Constructors (Vic) Pty Ltd [2015] VSC 728 and Wearne v State of Victoria [2017] VSC 25; 268 IR 401 and Nationwide News Pty Ltd v Rush[2020] FCAFC 115; 380 ALR 432 in which an award of $850,000 was upheld.
Mr Mahendra submitted that in Rush the Court was only dealing with damage to a man’s reputation. He asked rhetorically why should a man who has been defamed by allegations that he sexually harassed someone receive a sum of money that is five to 10 times greater than the highest awards for general damages awarded to victims of sexual harassment?
I find this submission unhelpful.
First, it belies a lack of understanding of the assessment of non-economic loss in defamation. Such an award serves three overlapping purposes of which recompense for the harm done to reputation is but one. The other two are consolation for the personal distress and hurt caused to the applicant by the publication and vindication. At the very least the amount awarded must be the minimum necessary to signal to the public the vindication of the applicant’s reputation and the gravity of the libel and the social standing of the parties are relevant considerations, as is the mode and extent of the publication, the failure to apologise or retract the defamatory statements. See Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 60–61 (Mason CJ, Deane, Dawson and Gaudron JJ) and Herald and Weekly Times Ltd v McGregor (1928) 41 CLR 254 at 262–263 (Knox CJ, Gavan Duffy and Starke JJ); 265 (Isaacs J). Rightly or wrongly, the law places a high value on reputation and the level of damages is supposed to reflect that: John Fairfax Publications Pty Ltd v O’Shane (No 2) [2005] NSWCA 291 at [3] (Giles AJA), Ipp AJA agreeing at [14].
Kenny J expressed a similar opinion in Richardson at [112] in response to a similar submission.
Second, the large figure awarded to Mr Rush reflected his high reputation not only in Australia but throughout the world; the fact that the defamatory publications had the effect of “destroying” his reputation; the “very significant” extent of publication; and the “devastating” impact of the publications on Mr Rush (which had deeply hurt and traumatised him). It also included a component for aggravated damages.
Mathews concerned a woman who was subjected to abuse, bullying and sexual harassment from multiple employees and subcontractors on building sites throughout her two years of employment with the defendant company. The abuse was vile and threatening. The trial judge found that Ms Mathews sustained “very considerable psychiatric injuries as a direct result of [that conduct]” which “have and will continue to diminish the quality of her life”. He awarded her $380,000 in general damages.
Ms Mathews was referred to a psychiatrist who initially diagnosed her with a major depressive disorder, a significant and chronic post-traumatic stress disorder which had neither resolved nor improved since she left work despite psychotherapy and prescription medication. She was later admitted to hospital where she received six treatments of electroconvulsive therapy and “maintenance treatment” on four subsequent occasions after which she was diagnosed with bipolar II disorder induced by ECT. The evidence was that the post-traumatic stress disorder was “stable but chronic”, “permanently disabling”, and “unlikely remit significantly”. Ms Mathews also developed temporomandibular joint dysfunction, which caused her ongoing pain and severe limitation in her capacity to chew and enjoy many foods, as a result of grinding her teeth related to her psychiatric illness. The trial judge found that she had had “no work capacity” since leaving the employ of the defendant and would never work again (at [41]).
It is obvious that this case is not remotely comparable.
Wearne concerned a claim of bullying and harassment of an employee with a “pre-existing psychological fragility” and “a susceptibility to suffer psychiatric harm” (at [2]). She ceased work on 7 November 2008, at the age of 54, when she suffered “a breakdown” and had not undertaken any paid employment since (at [3]).
Dixon J awarded Ms Wearne $210,000 in general damages.
His Honour was satisfied that Ms Wearne suffered from an exacerbation of a pre-existing psychological injury, namely, chronic adjustment disorder with mixed anxiety and depressed mood (at [347]). Although it is not entirely clear from the reasons, he seems to have accepted that she had developed a major depressive disorder, which was moderately severe, but had improved after a change in antidepressants (see [347]–[350]). He found that Ms Wearne suffered anxiety and depressed mood with specific features of melancholia, required significant medication, was unable to work, suffered “significant loss of enjoyment in her lifestyle”, and was fixated on the way she was treated by her supervisor such that she “avoids supervision and hierarchical structures” and has limited dealing with others (at [365]). His Honour was satisfied that her prognosis was “guarded and poor” and there was “very little chance of any material improvement”. He also found that she had been incapable of working at all in the nearly nine years since she had ceased working for the State and would remain wholly incapacitated (at [382]).
The present case is different from this, too.
In the present case, Mr Mahendra submitted that an award of $250,000 was in keeping with community standards and properly reflects “the significant and fundamental shift in community standards” since Richardson was decided in 2014.
I have real difficulty with this submission. The purpose of damages is to compensate the applicant for the harm caused to her by the sexual harassment she suffered, not to reflect the community’s appreciation of the extent of harm that can be occasioned by sexual harassment.
In determining an appropriate award in the present case, I take into account the following matters. Ms Taylor is a young woman who has developed a chronic psychiatric disorder caused by the respondents’ conduct. As a result, she has experienced depression and anxiety, disturbed sleep, reduced energy, poor concentration, lack of motivation, loss of appetite and a reduction in social contact. She also grieves the loss of her career and the damage she perceives has been done to her reputation. On the other hand, she has improved. She appears to be in a stable and supportive relationship with her partner and she has returned to the workforce. She is obviously a talented and resourceful woman. In my opinion, her condition is likely to continue to improve with the assistance of psychological care once this proceeding concludes.
In view of the effect on Ms Taylor and the prognosis of the psychiatrists, I consider that an award of $250,000 in general damages for the sexual harassment and an additional $50,000 for the victimisation would be manifestly excessive. It would not be compensatory but punitive. I would award Ms Taylor $140,000 for the sexual harassment and $40,000 for the victimisation.
Aggravated damages
Aggravated damages are compensatory (rather than punitive) in nature, “awarded for injury to [an applicant’s] feelings caused by insult, humiliation and the like”: Lamb v Cotogno (1987) 164 CLR 1 at 8 (Mason CJ, Brennan, Deane, Dawson, Gaudron JJ).
Where appropriate, aggravated damages may be awarded as “[a]dditional compensation for the injured feelings of [an applicant] where [the applicant’s] sense of injury resulting from the wrongful physical act is justifiably heightened by the manner in which or the motive for which the [respondent] did it”: Cassell & Co Ltd v Broome [1972] AC 1027 at 1124 per Lord Diplock. But aggravated damages many also be awarded to an applicant whose distress is made worse by the respondents’ conduct after the wrongful act or acts are committed: Triggell v Pheeney (1951) 82 CLR 497 at 514 (Dixon, Williams, Webb and Kitto JJ). That includes the conduct of the defence but is not limited to the conduct of the defence.
Aggravated damages can only be awarded, however, if the conduct of the respondents was improper, unjustifiable or lacking in bona fides: Triggell v Pheeney at 514. The mere persistence, even if vigorous, in a bona fide defence in the absence of improper or unjustifiable conduct is not enough: Coyne v Citizen Finance Limited (1991) 172 CLR 211 at 237 (Toohey J, with whom Dawson J and McHugh J agreed at 222 and 239 respectively).
There is no dispute that aggravated damages may be awarded in a case of this nature. It is well established that s 46PO(4) empowers the Court to award aggravated damages in an appropriate case, whether as a separate sum or otherwise: see, for example, Hall v Sheiban at 239–240 (Lockhart J) and 282 (French J); Ewin v Vergara at [676] (Bromberg J). In Hughes v Hill the Full Court upheld an award of $50,000 for aggravated damages based on threats made by the appellant to the respondent to prevent her from making a complaint about his sexual harassment and the manner in which he conducted the trial.
In the amended statement of claim Ms Taylor pleaded that aggravated damages should be awarded because of the respondents’ contraventions of the SDA.
The pleaded case on aggravated damages based on the conduct itself was effectively abandoned. It featured in none of the submissions. In those circumstances it may be taken not to have been pressed.
In closing submissions Mr Mahendra submitted that aggravated damages should be awarded because of the conduct of the defence, including the defence itself, that is the respondents’ pleading; the threatened costs application against Maurice Blackburn; and the matters set out in the AHRC response. He argued that this conduct amounted to “victim-blaming and shaming, intimidatory tactics designed to dissuade Ms Taylor from pursuing her complaint and legal rights”. Mr Mahendra described the conduct of the defence as “appalling, unjustifiable and improper”. He referred, in particular, to Mr Grew’s denials that the gifts were unsolicited; and the allegations in the AHRC response that, since Mr Grew separated from his wife, “Ms Taylor [repeatedly] behaved in a flirtatious manner and often tried to instigate physical contact with Mr Grew”, providing as an “example” of such behaviour “touching his shoulder and squeezing his arm to get his attention”.
To the extent that the submissions cut across the victimisation claim, I reject them. They invite the Court to award damages twice for the same loss. That is impermissible, if not unconscionable. In oral argument, Mr Mahendra accepted as much.
The respondents argued that no award should be made. In their closing submissions they pointed to the narrow basis for the claim as pleaded and opposed the expansion of the claim beyond the pleading.
I reject the argument.
First, the respondents’ submissions assume that it was necessary to plead the additional matters. While it might have been desirable, I am not satisfied it was necessary. Ms Taylor was required to plead the material facts on which she relied but not the evidence by which those facts were to be proved: Federal Court Rules 2011 (Cth), r 16.02(1)(d). The matters to which objection was taken are not material facts. A material fact is a fact which is necessary to formulate a complete cause of action; particulars are not material facts: Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd (1991) 217 ALR 171 at 173 (French J). While the Rules require a party who claims exemplary damages to state in the pleading particulars of the facts on which the claim is based (r 16.44), there is no equivalent requirement in relation to aggravated damages.
In any case, pleadings are only a means to an end, not an end in itself: Betfair Pty Ltd v Racing New South Wales (2010) 189 FCR 356 at [52] (Keane CJ, Lander and Buchanan JJ). A hearing that departs from the pleadings is not necessarily unfair: Garner v Central Innovation Pty Limited [2022] FCAFC 64 at [70] (Charlesworth, Stewart and Halley JJ). “[M]ere infelicity of drafting will rarely be allowed to defeat a case on its merits if the merits of the case have been made apparent on the evidence without unfairness to the other party”: Betfair at [55]. “[M]odern pleadings have never imposed so rigid a framework that if evidence which raises fresh issues is admitted without objection at trial, the case is to be decided upon a basis which does not embrace the real controversy between the parties … cases are determined on the evidence, not the pleadings”: Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd (1990) 169 CLR 279 at 296–297 (Dawson J), cited with approval in Vale v Sutherland (2009) 237 CLR 638 at [41] (Gummow, Hayne, Heydon, Crennan and Kiefel JJ). The overriding consideration is whether the opposing party knows the nature of the case they have to meet: Australian Securities and Investments Commission v GetSwift Ltd (Liability Hearing) [2021] FCA 1384 at [85] (Lee J).
Here, the claim made in closing submissions could not have come as a surprise to the respondents. As early as October 2020 Ms Taylor’s lawyers effectively foreshadowed a claim for aggravated damages “based on the aggravating and intimidating conduct of the respondents in their response and defence”. In his written opening, Mr Mahendra contended that an award of $50,000 in aggravated damages was appropriate “having regard to [Ms Taylor’s] treatment following her foreshadowing and then lodging her complaint with the AHRC together with the manner in which the respondents have conducted their defence”. With respect to the latter, Mr Mahendra reserved the right to make submissions at the conclusion of the hearing regarding the conduct of the respondents during the litigation. No objection was taken to this course at the time. In their written opening the respondents merely asserted, in effect, that the evidence did not support a claim for aggravated damages (“on no view is Ms Taylor entitled to aggravated damages on the evidence before the Court”). Nor was objection taken to cross‑examination of Mr Grew about these matters.
There was, however, a lack of rigor and clarity in the way the aggravated damages claim was put.
In his oral opening Mr Mahendra formulated the claim for aggravated damages as an alternative to the victimisation claim. Mr Mahendra referred to the demands for the return of the property, the assertions that Ms Taylor’s claim was vexatious or frivolous, and the threat of personal costs orders. The demands for the return of the property were clearly covered by the victimisation claim. But the last two matters were not. There is no reason why they may not be relied upon as aggravating conduct.
The solicitors’ correspondence that followed the notification of the claim by Maurice Blackburn in August 2020 was not merely a rebuttal of Ms Taylor’s claim, it was also an attack on her character. As I have already mentioned, in the 4 September letter Ms Taylor was said to have “manipulated Mr Grew during the course of her employment” and “[taken] advantage of their relationship for pecuniary gain”, neither of which was put to her in cross-examination. Ms Taylor testified that the description of her claim as “frivolous, vexatious and lacking in merit” made her feel sick in the stomach. The threat of a costs order against her lawyers personally was unjustifiable and the respondents made no attempt to justify it. The description of Ms Taylor’s case as “frivolous, vexatious and lacking in merit” was unwarranted and, coupled with the threat of a costs order against her lawyers, was intimidatory. Their assertion in her response to the AHRC complaint that Ms Taylor repeatedly acted in a flirtatious way towards Mr Grew was not supported by the evidence.
I would award $15,000 in aggravated damages. In doing so, I make no allowance for the conduct of the defence of the proceeding.
The respondents’ defence of the proceeding was described by counsel in written submissions as “appalling, unjustifiable and improper”. Reference was made to the denials that several of the gifts were “unsolicited”, when the evidence indicated otherwise and it was never put to Ms Taylor that she had solicited them, “presumably because there was no evidentiary basis to do so”. While this conduct was imprudent, perhaps foolish, I do not think it was improper, unjustifiable or lacking in bona fides.
Out-of-pocket expenses
The only claim for past out-of-pocket expenses is for $878.80 in psychologist fees. The respondents agreed that the amount has been incurred. Dr Allnutt considered that the treatment she has received has been reasonable and necessary. Dr Parmegiani did not suggest otherwise. I am satisfied that the need for the treatment arises from the unwelcome sexual conduct and the acts of victimisation. I am also satisfied that Ms Taylor requires some continuing treatment for a period of time. But what kind of treatment and for how long?
The claim for future out-of-pocket expenses, as ultimately put in Ms Taylor’s Further Statement of Particulars, is purportedly based on the opinion of Dr Allnutt. The contention is that Ms Taylor will incur the following expenses:
a.Future monthly attendances upon general practitioners, at a cost of $45.00 per attendance for a period of 12 months totalling $540.
b.Future bi-weekly attendances upon a psychologist, at a cost of $74.50 per attendance after the Medicare rebate is applied, for a period of 12 months, totalling $1,788.
c.Future monthly attendances upon a psychiatrist at a cost of $300 per hour for a period of 12 months totalling $3,600.00.
d.Antidepressant medication at a cost of $30 to $60 per month for a period of 12 months totalling $360 to $720.
The respondents quarrel with the first item on the ground that it is not included in Dr Allnutt’s report. The second and third items are disputed only as to extent. As to the fourth, the respondents pointed out that the period recommended by Dr Allnutt was not 12 months, but six to 12 months, and therefore an amount in the range of $180–$720 is appropriate.
I accept the claim for psychological consultations but not the extent of them. Dr Allnutt did not recommended bi-weekly consultations for 12 months. He “envisage[d] weekly to 2 weekly [which I take to mean fortnightly] consultations over a period of 6 to 12 [months] or longer depending on clinical response”.
While Dr Allnutt did not mention monthly attendances on general practitioners, he did say that Ms Taylor’s “general practitioner needs to continue to monitor her physical and mental state and undertake the usual investigations to rule out underlying medical causes of anxiety and depression”. It is appropriate to make an allowance for this.
But I am dubious about whether Ms Taylor is likely to avail herself of psychiatric assistance. In cross-examination she expressed a preference for psychologists over psychiatrists and said she would be guided by her psychologist. She understood that Dr Allnutt had recommended psychiatric treatment and said she would “definitely look into” it. In the circumstances, I am only prepared to award an amount for the chance that she would undergo psychiatric treatment, even if it were recommended, which I assess at less than 50%.
Dr Parmegiani thought medication was not a priority if his diagnosis was the correct one. He considered she would likely heal in time with psychological therapy. Ms Taylor also expressed reluctance to take antidepressants and told the Court she was reluctant to do so. I would therefore make no allowance for them.
Taking all these matters into account, I would award a total of $3,000 for future out-of-pocket expenses.
Past economic loss
The claim for past economic loss, as particularised in the Further Statement of Particulars, is for loss of income from 10 August 2020 to 25 September 2022. The amount claimed is $8,700.64. It is said to be calculated on the difference between the net amount Ms Taylor would have been earning had she remained in the employ of Grew & Co during that period, based on the net amount she was paid per week when she last worked there ($1,309.84) (amounting to $145,392.24), and the net amount she earned in income during that period (said to be $136,691.60).
An amount of $14,370 is claimed for the lost value of employer superannuation contributions over the period. There is no dispute as to the amount.
The remaining question is whether Ms Taylor was incapacitated for work during the period in question as a result of her psychiatric disorder. Based on the psychiatric evidence, I am satisfied that she was. Consequently, she should receive the agreed amounts. I see no reason to discount them. It was no part of the respondents’ defence that Ms Taylor failed to mitigate her loss.
It was apparently common ground that Ms Taylor will not be required to repay workers’ compensation benefits so no allowance needs to be made in accordance with Fox v Wood (1981) 148 CLR 438. In any event no such claim was made.
A claim was also made for $18,298.12 for annual leave accessed after 11 August 2020 that Ms Taylor would not otherwise have taken. The contention was that, but for her injuries, Ms Taylor would have retained her annual leave entitlements and been entitled to receive a payment of her accrued but untaken annual leave when her employment ended. I reject the claim. It was common ground that Ms Taylor was paid all her annual leave entitlements. The claim is based on the assumption that, if she had continued to work, she would not have taken all her annual leave. Even if such a loss sounds in damages, the evidence is insufficient to support the assumption on which the claim is based. Ms Taylor was not asked a single question on the subject.
Future economic loss
Ultimately there was no dispute about the calculations in the figures for future economic loss. They are $39,667.94 for lost earnings or lost earning capacity over a period of three years and $9,051.39 in superannuation.
This claim was based on the hypothesis that, but for the injuries, Ms Taylor would have continued in the employ of Grew & Co for “at least three years” on the salary she was earning at the time she last worked there ($1,309.84 per week net) and that she will continue to work four days a week for the duration of that period with her new employer (and receive workers’ compensation payments until the week beginning 27 March 2023). In fact, the amount claimed appears to be based on a loss for exactly three years. The claim is supported by the evidence, although Ms Taylor did say in cross-examination that it was her intention to return to work five days a week. Dr Parmegiani’s opinion, based on his assessment of Ms Taylor on 29 June 2022, was that she would be able to return to full-time employment within three to six months, by the end of September 2022 or the end of December the same year.
Ms Taylor’s claim makes no allowance for vicissitudes. However the period is short and the vicissitudes are both positive (for example, she might return to work five days a week as she intended) and negative (such as the vicissitudes of life and the chance that Dr Parmegiani’s optimism is misplaced). While I have concluded that Ms Taylor is likely to improve, that is not certain. Nor is it certain that Ms Taylor would have been fit to resume full-time work within the period Dr Parmegiani envisaged.
As I have said, the psychiatrists were guarded in their optimism. On balance, I would make only a modest discount of 5%. That would result in a reduction of the amount claimed for future lost earnings to $37,684.55, which I would round up to $37,685, and $8,598.82 for lost superannuation benefits which I would round up to $8,599.
Interest
Interest should be paid on past losses to the date of judgment in accordance with s 51A of the FCA Act. Interest should be paid on past general damages from 6 January 2020 at the rate of 2% per annum (see Gill v Ethicon Sàrl [2019] FCA 1905 at [5131]). In view of the prognosis, I would allocate 70% of the general damages to the past. I award interest on past economic loss, including paid out-of-pocket expenses, from 11 August 2020 at the rates prescribed by Practice Note GPN-INT.
The claim for declaratory and other relief
No submissions were made in relation to any of the other forms of relief.
CONCLUSION
Ms Taylor has substantially succeeded in her claims. I am satisfied that she was sexually harassed by Mr Grew and victimised for complaining about it. I am also satisfied that she suffered loss and damage caused by that conduct. Both Mr Grew and Grew & Co are liable for the loss and damage caused by the sexual harassment and Mr Grew for the loss and damage caused by the victimisation. Judgment should therefore be entered in Ms Taylor’s favour. The parties should bring in short minutes of order giving effect to the judgment in accordance with these reasons. I will also make orders to deal with the question of additional relief if the claim is maintained.
I certify that the preceding five hundred and sixty (560) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Katzmann. Associate:
Dated: 31 October 2023
- AGLC
- Taylor v August and Pemberton Pty Ltd [2023] FCA 1313
- Case
- [2023] FCA 1313
- Decision Date
CaseChat Overview and Summary
The court was required to decide whether Mr Grew's conduct amounted to "unwelcome sexual advances or other unwelcome conduct of a sexual nature" as defined in section 28A of the Sex Discrimination Act 1984 (Cth). This involved determining whether the gifts were unsolicited and unwelcome, whether the comments and declarations of affection were made and were unwelcome, and whether the conduct occurred in circumstances that a reasonable person would anticipate might offend, humiliate, or intimidate Ms Taylor. The court also needed to assess whether Mr Grew's actions after Ms Taylor indicated her intention to complain to the AHRC constituted victimisation under section 94 of the Sex Discrimination Act.
The court found that Mr Grew's conduct did amount to sexual harassment and that his actions following Ms Taylor's indication of her intention to complain constituted victimisation. The court examined the nature and extent of the gifts, the comments made about Ms Taylor's appearance, and the physical act of slapping her on the buttock. It considered the timing of the conduct, the relationship between the parties, and the context in which the conduct occurred. The court concluded that a reasonable person in Ms Taylor's position would have been offended, humiliated, or intimidated by Mr Grew's conduct.
In summary, the court found that Ms Taylor was sexually harassed and victimised by Mr Grew and the company. It awarded her damages for the harm caused by the harassment and victimisation. The court ordered that judgment be entered in favour of Ms Taylor and that the parties confer to reach an agreement on the additional relief sought. If no agreement was reached, the court set out a process for the parties to file and serve written submissions. The court also ordered the respondents to pay Ms Taylor's costs.
Orders
Orders of the court
1. Judgment be entered in favour of the applicant.
2. By 4:00pm on 21 November 2023 the parties bring in short minutes of order giving effect to the judgment.
3. In the event that the applicant presses her claim for remedies other than damages (as sought in her amended originating application):
(a) the parties confer with a view to reaching agreement;
(b) if no agreement is reached:
(i) the applicant file submissions, not exceeding 5 pages, by 4:00pm on 28 November 2023;
(ii) the respondents file and serve submissions in response, not exceeding 5 pages, by 4:00pm on 5 December 2023;
(iii) the applicant file and serve submissions in reply, not exceeding 3 pages, by 4:00 pm on 12 December 2023; and
(iv) unless the court otherwise orders, any claim for additional relief be determined on the papers.
4. The respondents pay the applicant’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
TABLE OF CONTENTS
INTRODUCTION
[1]
THE BACKGROUND FACTS
[2]
PROOF
[26]
THE LAY WITNESSES
[28]
THE SEXUAL HARASSMENT CASE
[35]
The allegations
[35]
The statutory context
[37]
The evidence
[54]
Mr Grew’s feelings for Ms Taylor
[54]
The gifts
[61]
The allegations
[61]
The extent of the dispute
[62]
2018
[70]
The Chanel coin purse
[70]
The emerald and diamond platinum ring
[73]
The Hydra ring
[82]
The white gold hammered band ring and the 5 mm and 10 mm silver rings
[86]
2019
[91]
The six stone diamond necklace
[91]
The peach sapphire and the diamond cluster necklace
[97]
The jade bangle
[107]
$2000 cash
[118]
The massage
[126]
The Gemini stud earrings
[133]
The silver signet ring
[145]
Michael Kors bomber jacket
[148]
The MECCA gift card
[161]
2020
[164]
The gold signet ring
[164]
Stuller gold earrings
[168]
Gift giving at Grew & Co
[175]
The comments
[185]
“Petite, curvy brunettes” comment
[186]
“Beautiful body” comment
[187]
“Bedroom eyes” comment
[194]
“You are perfect” comment
[199]
“How amazing you look” comment
[206]
The slap
[209]
The declaration of feelings in early January 2020
[219]
The trip to the USA
[239]
Ms Taylor’s attitude towards the trip
[243]
The purchase of the Mociun ring
[246]
Transport from Sydney airport
[253]
Ms Taylor’s condition in March 2020
[254]
The 1 June 2020 remarks
[255]
The aftermath
[280]
Request to reduce working days
[282]
Further interactions in June – July 2020
[291]
Request to take annual leave to move house
[297]
Changing passwords
[302]
Inadvertent text message criticism
[303]
Further changing of passwords
[311]
Ms Taylor’s mental state between leaving work and receiving the respondents’ response to her complaint
[312]
Findings
[313]
Some matters of context
[313]
Which of the items were gifts and/or unsolicited?
[317]
Did Mr Grew slap Ms Taylor on her buttock(s) on 23 July 2019?
[326]
Did Mr Grew make unsolicited comments to Ms Taylor about her appearance between October and December 2019 as alleged?
[337]
Did Mr Grew say to Ms Taylor the things she attributed to him in the conversations in the office on 6 January 2020 and in the car on 1 June 2020?
[342]
Which, if any, of the alleged conduct was of a sexual nature and/or a sexual advance and unwelcome?
[350]
The argument
[350]
The gifts
[352]
The slap on the buttock
[376]
The comments about Ms Taylor’s appearance
[377]
The overtures in January and June 2020
[378]
Were the circumstances in which the relevant conduct occurred such that a reasonable person would have anticipated the possibility that Ms Taylor would be offended, humiliated or intimidated?
[387]
Conclusion
[394]
THE BREACH OF CONTRACT CLAIM
[395]
THE VICTIMISATION CASE
[396]
The statutory context
[396]
The allegations
[403]
The evidence
[404]
Ms Taylor complains of sexual harassment and foreshadows the making of a complaint to the AHRC (the 28 August letter)
[407]
The response to the 28 August letter (the 4 September letter)
[409]
Ms Taylor complains to the AHRC
[421]
The respondents press their claim for the return of company property and add a new allegation (the 15 October letter)
[422]
Ms Taylor requests particulars
[424]
The respondents file their response to the AHRC complaint accusing Ms Taylor of theft and threaten to report her to the police
[427]
AHRC conciliation
[431]
The respondents request the return of confidential information (the 19 March letter)
[432]
The issues as defined by the parties
[439]
The argument
[441]
Findings
[449]
RELIEF
[455]
The power to make orders
[455]
The relief sought
[457]
The damages claim
[458]
The lay evidence
[459]
The expert evidence
[472]
Findings
[488]
General damages
[501]
Aggravated damages
[523]
Out-of-pocket expenses
[541]
Past economic loss
[549]
Future economic loss
[554]
Interest
[558]
The claim for declaratory and other relief
[559]
CONCLUSION
[560]
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.