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
Betfair Pty Ltd v Racing New South Wales (2010) 189 FCR 356
Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118; 63 AILR ¶101–302
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- 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.