Tripp v Freeman No. Scgrg-98-196 Judgment No. S6948

TRIPP v FREEMAN
[1998] SASC 6948

Full Court: Millhouse, Olsson and Debelle JJ

MILLHOUSE J. I agree with the reasons of Olsson J.
OLSSON J. This is an appeal against a decision of the Equal Opportunity Tribunal (“EOT”) published on 7 January 1998. The Tribunal dismissed a complaint prosecuted by her against the respondent.
The relevant complaint was originally made to the Commissioner for Equal Opportunity as long ago as 24 February 1993. For some reason, which is not presently apparent, it was not referred by the Commissioner to the EOT until 17 December 1996. Due to staffing problems in the EOT it was not, therefore, heard until November 1997. As the EOT pointed out, this total delay gave rise to obvious difficulties in relation to witness evidence and recollections.
The matter ultimately came before the EOT pursuant to s95(8)(c) of the Equal Opportunity Act 1984 (“the Act”).
The appellant alleged that she was subjected to both sexual harassment and discrimination by the respondent, in the course of his providing accommodation to her during the period from mid-1991 to mid-1993. More particularly, the complaint alleged that the respondent subjected her to sexual harassment in the course of providing accommodation, contrary to s87(6) of the Act, and that she was discriminated against on the ground of sex, contrary to s40(2)(a) and s29(1) and s29(2) of the Act.
The appellant now appeals to this Court against the decision of the EOT. She complains of both its methodology in considering the various allegations and also its failure to characterise relevant conduct of the respondent as constituting sexual harassment.
By virtue of s98(4) of the Act the Court is required to conduct this appeal "as a review of the decision of the Tribunal." That is an unusual, but not unique, provision. In my opinion the approach proper to be adopted is that discussed by the Full Court in Avon v Administrative Appeals Court (1997) 69 SASR 7. I adhere to the concept which I there articulated in these terms:
"...It is a process in which this Court is required to reconsider the decision complained of, in the setting which gave rise to it, on a broad basis, having regard to the nature of the jurisdiction exercised under the Act; and to form its own opinion as to the propriety of what was done. In so doing it will, on the one hand, not be fettered by technical principles related to the conduct of appeals, but will necessarily bear well in mind and give due regard to the fact that the decision appealed against is that of a specialist tribunal, which ought not, lightly, to be overturned. On the other hand, it is clearly the intention of the statute that this Court is to exercise an independent judgment in assessing whether or not the court appealed from fell into error in relation to the merits of the proceedings. It must formulate its own conclusion and should not hesitate to give effect to it, if it believes that there are suasive reasons for dissenting from what was done by the AAC."

In order to understand the issues arising from the appeal, it is necessary, first, to attempt a brief outline of some of the background history.
The respondent and his wife, Ms Anne Freeman, were the appellant’s landlords during the period May/June 1991 to June 1993. The appellant, a single woman with two children, moved into one of four flats at Kingston-on-Murray owned by the respondent and his wife. Those flats were located on a what seems to have been a vineyard property operated by the appellant and his wife.
Approximately three months after moving into the flat, the appellant and her children transferred into one of the other flats owned on the property. It was said by the appellant that, on the day in question, the respondent assisted her to move. She contended that he allegedly requested a sexual favour from her, in that he asked whether she would let him in if he knocked on the door (the first allegation). It was further contended that, on the following day, he requested a sexual favour by inviting her, by telephone, to come to his house where he was alone (the second allegation).
The allegations against the respondent did not stop there. It was further claimed by the appellant that, between September 1991 and October 1992, the respondent requested sexual favours from her, in that he came to her front door on frequent basis (the third allegation). Moreover it was complained that, during this period, he made remarks with sexual connotations relating to the appellant, in that he often asked her about boyfriends, and remarked that young men were no good, and said that he would make a good boyfriend for her (the fourth allegation).
Next it was alleged that, in early October 1992, the respondent requested a sexual favour, in that he invited the appellant to accompany him to Alice Springs, where he was to participate in the Masters Games (the fifth allegation).
The appellant also complained that, in mid-October 1992, a Ms Heather Rawlings (another tenant of the flats who was said to have been having an affair with the respondent) told the appellant that the respondent had described her as a “mad moll”, this expression having a sexual connotation (the sixth allegation).
Further allegations were made against the respondent to the effect that he subjected her to unsolicited and intentional acts of physical intimacy, in that he blew kisses to the appellant in late January and February 1993 (the seventh and ninth allegations).
Additionally, it was alleged that, on 10 February 1993 at about 6:00pm, the respondent requested a sexual favour in that he called out to the appellant, “Got time for a cuddle?” (the eighth allegation).
The appellant next asserted that, late in February 1993 at 8.55 am, the respondent allegedly subjected her to an act of physical intimacy and requested a sexual favour, in that he blew a kiss to her and gyrated his hips and thrust his pelvis towards her when he attended her flat to repair a broken fence (the ninth allegation).
Finally, it was said by the appellant that the respondent subjected her to an unsolicited and intentional act of intimacy, in that he, unnecessarily, touched her fingers while she was assisting him to repair the screen door at the back of the flat (the tenth allegation).
Those were the relevant specific allegations that the appellant made to the Commissioner of Equal Opportunity on 24 February 1993 and which were, ultimately, referred to the EOT. They were, however, accompanied by various other assertions of alleged background fact.
In the course of its reasons the EOT noted that relationships between the appellant and the respondent had been good until the alleged “mad moll” incident in mid-October 1992, about which time the former was said to have abused the latter on his return from Alice Springs. She also later told the respondent’s wife, in the course of a telephone conversation, that the respondent had been having an affair with Ms Rawlings. Quite clearly, relationships deteriorated markedly after that time.
During his submissions on the appeal Mr Weatherill, of counsel for the appellant, was critical of the manner in which the EOT sought to classify allegations by reference to the periods before and after mid-October 1992. However, it seems to me that it was entirely logical to do so. The relationships, which existed at a given point in time potentially had an important bearing on the matter in which any conduct of the respondent may have been viewed by the appellant; and, thus, the effect which it had on her. For example, a statement made jocularly between to persons enjoying cordial relations may well have been made and accepted in good humour, whereas a similar statement made in circumstances of antipathy might well, reasonably, be received as being quite offensive and upsetting.
It is also beyond question that, by about November 1992, the appellant was some weeks behind in payment of rent for her flat. On 5 January 1993 a 120 day notice of termination of tenancy was given by the respondent and his wife to the occupants of all flats, pursuant to the provisions of the Residential Tenancies Act 1978. This seems to have been related to a decision of the respondent and his wife to move to Renmark and hand over management of their property to their son. In the case of the appellant it probably also reflected her tardiness in paying rent accrued due.
On 7 May 1993 the respondent made application to the Residential Tenancies Tribunal for an order evicting the appellant, who had not vacated in pursuance of the notice of termination. An order was made on 21 May 1993 that she vacate by 7 June 1993.
The EOT made a specific finding that the lodgment by the appellant of her complaint with the Commissioner for Equal Opportunity was motivated by the receipt by her of the notice of termination. That, in itself, was, as a matter of logic, an important consideration in assessing her credibility and the substance of her allegations.
Prior to the application for an eviction order, the appellant had made application to the Tribunal for an order for quiet enjoyment to prevent the respondent unnecessarily passing slowly close to a large window of her flat, which overlooked the respondent's fruit block access track.
Evidence was given before the EOT by the appellant, Ms Rawlings and the respondent. As to this the Tribunal commented:-
“We had some difficulty with the evidence of the witnesses. One of those difficulties resulted from the delay between the incidents alleged and the hearing. We cannot say strongly enough that these matters, if they are to be referred to this Tribunal, must be referred promptly. Nearly five years between the making of the complaint and the hearing in this Tribunal, including four years before the matter was referred, is far too long, given the emotional nature of these matters. Apart from that aspect, the delay means witnesses have difficulty recalling precisely, events of up to 6 years previously and the circumstances surrounding them.
Neither the complainant nor the respondent were entirely credible. Ms Rawlings’ evidence was of little assistance to us, coloured as it was by her strong negative attitude to the respondent. It is clear that the complainant’s motivation to lodge the complaint of sexual harassment was the receipt of the Notice of Termination.”
It later went on to say:-
“As she said later in evidence, she did not want to move, and she did not see why she should have to move. Of course, motivation is irrelevant where sexual harassment or discrimination has occurred, but it might be relevant to the determination of whether events occurred precisely as alleged by the complainant.
The respondent conducted his case without the benefit of legal assistance. His approach was coloured by his belief that the complainant had been led into making the complaint by an angry Ms Rawlings and that both Ms Rawlings and the complainant had set him up. He had difficulty in putting his version of the events to the witnesses with the consequence that the evidence was often not adequately tested. This made our task difficult, as did the inability of the witnesses to recall events with precision.”
It is trite to say that, in such circumstances, it becomes a well nigh impossible task for this court to go behind specific findings of fact made by the EOT and attempt to formulate and adopt other conclusions as to the facts, even by inference. As was said by the majority of the court in Devries and Anor v Australian National Railways Commission and Anor (1993) 112 ALR 641, where findings of fact depend to any substantial degree on the credibility of witnesses those findings must stand unless it can be shown that the trial court failed to use, or palpably misused, its advantage of seeing and hearing the witnesses, or acted on evidence which was inconsistent with facts incontrovertibly established by the evidence, or which was glaringly improbable. Furthermore, as was pointed out in Baumgartner v Baumgartner (1987) 164 CLR 137 at 145 - 6, it is not a legitimate exercise for an appeal court to ignore conflicts of evidence and the way in which the court at first instance resolved them; and to seek to draw inferences contrary to those drawn by that court and based essentially on its resolution of issues of credibility. This is particularly so in relation to any aspects of subjective intention.
The EOT was required to consider the various counts of sexual harassment in the complaint by reference to the provisions of s87(6) and s87(11) of the Act. These read as under:-
“(6)     It is unlawful for a person to subject another person to sexual harassment in the course of -
(a)     offering or supplying goods to that person;
(b).... offering or performing services to which this Act applies for that other person;
or
(c)     offering or providing accommodation to that other person.”
...................................................
“(11)   For the purposes of this section, a person subjects another person to sexual harassment if he or she does any of the following acts in such a manner or in such circumstances that the other person feels offended, humiliated or intimidated:
(a).... he or she subjects the other to an unsolicited and intentional act of physical intimacy;
(b).... he or she demands or requests (directly or by implication) sexual favours from the other;
(c).... he or she makes, on more than one occasion, a remark with sexual connotations relating to the other,
and it is reasonable in all the circumstances that the other person should feel offended, humiliated or intimidated by that conduct.”
In so far as the complaint sought to establish discrimination on the ground of sex against the respondent other provisions of the Act were applicable.
It is important here to stress that the clear effect of subsection (11) is that the conduct complained of must be of one of the three types specified, the person who is subjected to such conduct must, in fact, feel offended, humiliated or intimidated at the time of that conduct and it must, in all of the relevant circumstances, be reasonable that such person should feel so offended, humiliated or intimidated by the conduct. Unless each of these requirements is satisfied, as to any conduct under review, it cannot constitute sexual harassment for the purposes of s87.
In my opinion the EOT, therefore, correctly identified the approach proper to be adopted to the application of s87(6) and s87(11) when it said:-
“The intention of an alleged offender might be relevant to prove that proscribed conduct was engaged in by him or her; for example, an act of physical intimacy to which a victim has been subjected must be both intentional and unsolicited, for it to begin to fall within one of the categories of ‘sexual harassment’. However, the intention of the alleged offender is not relevant to the victim’s feelings which result from the proscribed conduct. It is not necessary to prove that the alleged offender intended to offend, humiliate or intimidate the victim. What is relevant is whether the victim suffered resulting feelings which could be so categorised, and whether, objectively, that was reasonable in the circumstances.
Thus, for the complainant to succeed in this matter, it must be proved first, that the respondent engaged in any kind of conduct described in subsection 87(11); secondly that the complainant felt offended, humiliated or intimidated by the proven conduct of the respondent; and then the Tribunal must determine that the complainant’s feelings were reasonable in the circumstances. Finally, it must be proved that the respondent did subject the complainant to sexual harassment in the course of providing accommodation to the complainant.”
Having pointed out that the onus of proof was the civil onus, the EOT went on to comment that, often, it may well be vital to know all of the circumstances in which, for example, a question was allegedly asked, before it becomes possible to determine whether that question did or did not constitute a request for sexual favours. This, in my view, is plain common sense.
In its reasons the EOT proceeded to deal with the various allegations of sexual harassment seriatim. Mr Weatherill sought to criticise such an approach because he said that the reasons of the Tribunal indicated that it ignored a clear requirement to look at the circumstances globally and in their totality, to determine both the true facts and their proper characterisation. I will return to this aspect in due course. All that need be said at this point is that, whilst the totality of the evidence always bears importantly on questions of probability and characterisation, the necessary first step is to make specific findings of primary, narrative fact. It is simply quite unfair to suggest that the Tribunal went about its task in a series of isolated vacuums. Its initial process of reviewing credibility clearly necessitated the taking by it of an overview of the whole of the evidence. There is no reason to suppose that it did adopt the course asserted by Mr Weatherill, simply because it addressed the ten allegations seriatim.
I therefore propose to address findings made in the sequence adopted by the EOT.

First allegation (Statement re knocking on door)

I do not take the EOT to have made a positive finding that the alleged statement was made. Having noted the respondent’s denial that he asked the alleged question, it simply said that:-
“The difficulty we have with assessing this allegation is that we were not informed as to the context in which the words were said nor how the words were said, namely whether any word or words were given more emphasis than any other. Context and emphasis or manner of delivery can be critical to an assessment of whether the words amounted to an indirect request for a sexual favour.
Given the inadequacy of the evidence, even if either of what is alleged or similar words, were said, which we think likely, we cannot conclude that they amounted to an indirect request for a sexual favour from the complainant.”
Even if this dictum can be construed as a finding, on the balance of probabilities, that the statement alleged was made, the complete absence of contextual evidence renders it impossible to determine whether or not, in all the circumstances, the appellant did feel offended, humiliated or intimidated by the respondent’s conduct, or whether it was reasonable that she should have done so. This is the more so as the parties were apparently on good terms at the time. Additionally, as the EOT stressed, it was simply not possible, in the evidentiary lacuna which existed, to determine whether or not the alleged words actually constituted an indirect request for a sexual favour.
I can see no basis for concluding error on the part of the Tribunal.

Second allegation (Invitation to come to the respondent’s house)

This was disposed of by the EOT by a specific finding of fact based on credibility. It said:-
“The respondent admits that he telephoned the complainant on this day and acknowledges that he could have invited her to the house. He claims that the complainant had attended at the house occupied by him and his wife on one or more previous occasions and enjoyed a cup of coffee and a chat. We have concluded that the respondent did invite the complainant, by telephone, to his house on the day following the move by the complainant into the second flat but without anything further, we do not accept that the invitation amounted to a request by implication for a sexual favour from the complaint.”
That was a finding fairly open to the EOT on the evidence. It occurred at a time when the parties were on good relations. No complaint was expressed by the appellant at the time, nor was there any evidence that she was distressed. There is no basis upon which, consistent with principle, it may properly be impugned. The appellant did not prove all the elements required by s87(11).

Third allegation (Frequent comings to appellant’s front door)

Once again the appellant is confronted with the following finding of fact:-
“This is denied by the respondent. He asserts that he visited the complainant only once a fortnight to collect the rent monies. However, he acknowledges that he saw and conversed with the complainant on numerous occasions in the course of each week as a consequence of the flats being located at one end of the fruit blocks on which he worked, tending the grapevines growing thereon. The allegation is general and the evidence is not sufficient to establish that the respondent demanded or requested directly or by implication sexual favours from the complainant.”
Quite clearly the evidence fell far short of that which was contended for by the appellant and required by s87(11).

Fourth allegation (Conversation concerning boyfriends)

The EOT found as under:-
“We accept that the respondent asked the complainant about her boyfriend or boyfriends in conversation and that he made comments to the effect that the young ones were no good, that they spend all their time at the pub and that older men are better as boyfriends or partners. We find it more likely than not that he would have gone on to say that he would make a good boyfriend for the complainant, but again, we have evidence of the statement without the context or the manner in which it was said.”
It is to be recalled that, once again, this incident occurred at a time when the parties were still on good terms. Critical considerations were whether the statement was made jocularly, or in a context in which the appellant could reasonably have felt offended, humiliated or intimidated by what was said and/or the manner in which it was said, taken in context. There was no acceptable evidence that she was offended, humiliated or intimidated at the time.
In my opinion there is no basis for rejecting the conclusion of the EOT that, in such a state of the evidence, it could not conclude that any statement made offended s87.

Fifth allegation (Invitation to go to Alice Springs)

This allegation was unequivocally disposed of, as a matter of fact, by the following finding of the Tribunal:-
“We have concluded that the respondent did tell the complainant that he was going to Alice Springs and it is likely that he ‘invited’ the complainant to go with him. However we do not accept that this was a serious invitation or one that could be taken seriously by the complainant. We accept the respondent’s version of the context and manner in which the question or questions were asked. The allegation does not amount to a request by implication for a sexual favour from the complainant.”
That finding was fairly open to the EOT on the evidence and involves issues of relative credibility. There is no basis upon which this court can go behind it. It does not satisfy the requirements of s87(11).

Sixth allegation (“Mad Moll” statement)

The EOT made this finding:-
“We find that the respondent did describe the complainant as ‘a mad moll’ in private conversation with Ms Heather Rawlings. We find that Ms Rawlings communicated this fact to the complainant, but to no one else (apart from the complainant’s legal advisers and this Tribunal). The respondent admits that he did describe the complainant as such and gave evidence as to the context in which he claims it was said. He regrets the description, but says it was made privately.”
There is a very real question as to whether a private remark made to a third person can fall within s78(11)(c) of the Act, unless, perhaps, it was intended that the third party convey it to the person remarked upon.
Leaving that aside for the moment, the EOT had this to say:-
“Even if this remark relating to the complainant has a sexual connotation, and we are not presently convinced that it did or does have, it could only amount to a proscribed act if it had been made on more than one occasion. There is no evidence that the remark was made on more than one occasion.”
It must be said that whilst it is true that a single treatment does not satisfy the requirements of s87(11), nevertheless, such a statement coupled with other statements of the prescribed type, would satisfy the section (see s87(11)(e)), provided that the evidence indicated that two or more remarks, as a totality, did have the effect referred to in the section; and that such effect was reasonably experienced.
There was no finding on the part of the EOT that the statement made was intended to be conveyed to the appellant, or that it had the necessary effect on her. Whilst I agree that the EOT ought not to have viewed relevant statements in isolation in the manner in which it did, I conclude that it was not a statement falling within s87(11)(c) because it was not made to the appellant and there was no evidence of intended communication to her.

Seventh allegation (Blowing kisses)

The EOT made this finding:-
“The evidence in relation to this allegation amounted specifically to only one incident. The respondent admits he did blow a kiss on that occasion but says that it was made in response to strong verbal abuse of him by the complainant. We agree in all the circumstances that this explanation is likely.”
The Tribunal went on to conclude that, in the relevant circumstances, the conduct of the respondent had no sexual connotation at all. It was merely a rude gesture in response to verbal abuse of him by the appellant. As to this the EOT commented:-
“We do not accept that the act of blowing a kiss in these circumstances, where the respondent was at some distance from the complainant, and the respondent was reacting to verbal abuse by the complainant, amounts to one of physical intimacy. Whatever else ‘an act of physical intimacy’ might mean, it must at least involve two persons being in very close proximity to each other. That was not the case in this instance.”
It is clear that this allegation was totally misconceived in terms of s87(11). No question of physical intimacy, in the generally accepted meaning of that phrase, was remotely involved.

Eighth allegation (“Got time for a cuddle?”)

The EOT did not proceed to a finding as to this assertion. Having noted that the respondent denied the incident, the Tribunal went on to comment:-
“... Even if it were true, the act, in the context of the apparently worsening relations between the parties, does not amount to a request either directly or by implication for a sexual favour from the complainant.”
Patently, it was the opinion of the Tribunal that, if such a statement was made by the respondent it was no more than a sarcastic remark which did not have (and could not reasonably have been seen as having) any sexual connotation at all.
This was a conclusion well warranted by the evidence. In any event, to the extent that the express phrase employed could fairly be said, on the face of it, to be a remark with a sexual connotation, then it was a single remark which simply did not meet the requirement of s87(11)(c). There are no other relevant comments with which it can be linked for the purpose of that section.

Ninth allegation (Blowing a kiss and thrusting with pelvis)

Once again, the Tribunal made a finding of fact and characterisation of what occurred on the basis of its assessment of the evidence as a totality. Having recorded the respondent’s denial of the alleged incident, the EOT made these positive findings:-
“... Given the level to which the relationship between the parties had deteriorated by this time, we think it likely that the respondent behaved as stupidly as the allegation suggests. However, we are of the view that if the acts did take place, they amounted rather to a rude gesture than to a demand or request directly or by implication, for a sexual favour from the complainant, or to an act of physical intimacy.”
It is not difficult to accept, as did the Tribunal, that, by the time of this incident, such was the animosity between the parties that no reasonable person would have viewed the conduct of the respondent as having any sexual connotation at all, much less as requesting sexual favours from the appellant.
The EOT was fairly entitled to come to the view which it expressed.

Tenth allegation (Touching whilst screen door being repaired)

The EOT found that this allegation had not been proved as to the physical act relied on or that, if any such act occurred, it was an intentional act of physical intimacy.
It concluded:-
“This allegation could amount to an act of physical intimacy. The allegation is denied by the respondent. The fixing of the screen door is placed by Ms Rawlings in October 1992. The respondent agrees he fixed the door, but thinks it was after he repaired the back step, which would place the event probably after January 1993. There is insufficient evidence for us to accept that the act, if it did occur, in the circumstances was an intentional act of physical intimacy.”
Bearing in mind its findings as to credibility and the state of the evidence generally this finding scarcely comes as any surprise. It was a view which the EOT was entitled to take and has not, successfully, been impeached.

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It follows, on the findings summarised above, that the Tribunal’s ultimate finding that the appellant had not discharged her onus of proving that the respondent had subjected her to sexual harassment in the course of providing accommodation to her was inevitable.
As earlier mentioned, counsel for the appellant sought to criticise the EOT for “considering each of the complaints in isolation”. It should, counsel submitted, have considered the complaints as “part of a course of conduct all of which were directed at the appellant and reasonably caused her to feel offended, humiliated or intimidated and as a whole would have caused her to reasonably believe a sexual favour was being requested”. In this regard reliance was placed on the approach in Dippert v Luxford & Anor (1996) EOC 92-828.
That decision does no more than recognise the truism that it is important to view all proven facts as a totality to determine how ongoing conduct, which has occurred over a significant period of time, ought fairly to be characterised.
In the instant case the first essential step was to decide what factual incidents were proved to have occurred and the setting in which they occurred. As already appears, the evidence left a great deal to be desired as to the primary facts.
In some instances the Tribunal actually rejected the factual scenario sought to be portrayed. In others it pointed out that the scenario in which incidents took place patently denied the gloss which the appellant now seeks to place on them.
I reiterate that I am by no means convinced that the Tribunal failed to give due consideration to a total overview of the evidence, as is now asserted by the appellant. Plainly its conclusions as to relative credibility must have stemmed from such a process. Whether that be so or not, all that need be said is that, given the undoubted broad chronology of events, the specific findings of fact and conclusions arrived at are compelling. They also have the added attraction of according with a common sense view of what took place over time.
Furthermore, to the extent that there were obvious factual lacunae in the evidence as adverted to by counsel for the respondent, the appellant cannot be heard to complain. She bore the onus of putting all relevant material before the Tribunal and she did not do so. Many of the alleged incidents were simply not fleshed out as to their context, nor was there acceptable evidence as to any impact on the appellant. Such statements as were made by her in evidence concerning her feelings were of the most general type and smacked of ex post facto rationalisation which totally ignored the changing relationships between the parties over time.
It was also averred that the EOT erred in failing to make positive findings of fact concerning allegations (1), (3), (8) and (10) which, it was said, when considered with the other findings, could have amounted to sexual harassment.
The short riposte to that suggestion is that, in each instance, the evidence was so unsatisfactory that the Tribunal was unable to make the findings in question with the requisite degree of confidence. What it did conclude was that, even if the allegations could be accepted, they did not bear the connotations suggested by the appellant.
The appeal as to the issue of sexual harassment has not been made good. A separate assertion was made concerning the conclusion of the EOT as to the tenth allegation. This fell to the ground on the basis of paucity of credible evidence. The appellant had not discharged her onus.
In its reasons for decision the EOT adverted to a separate head of complaint related to alleged discrimination in relation to accommodation, based on s40(2)(a) of the Act.
All that need be said is that the EOT summarily rejected that aspect of the complaint as not having been made out, particularly in light of its findings as to the ten allegations already discussed.
This aspect was not challenged on the appeal.
In the circumstances above outlined I am of opinion that there is no substance in this appeal. I would dismiss it.

DEBELLE J. The relevant facts have been recited by Olsson J and need not be repeated.
The gravamen of this appeal is that the Tribunal dealt with each of the allegations of the appellant in an isolated manner. Mr Weatherill, who appeared for the appellant, submitted that the allegations had to be considered together so that each might be examined in its proper context.
The submission overstates the position. It was necessary for the Tribunal to proceed in two stages. Its first task was to find what had occurred on each occasion the subject of an allegation of sexual harassment. It was also necessary to determine any other relevant facts which provided the background to the specific allegations. The Tribunal has discharged that task.
The next task for the Tribunal was to examine the findings of fact and determine whether the respondent’s conduct on each occasion the subject of an allegation constituted an act of sexual harassment. When using the term “conduct”, I mean to refer to the respondent’s words or actions or both. When examining the conduct which it had found had occurred, the Tribunal should not only consider the conduct, the subject of each allegation, in isolation but, if appropriate, also consider that conduct in conjunction with other conduct of the respondent since that other conduct might add colour to the conduct under scrutiny. This is particularly so where the appellant alleged that the respondent’s conduct constituted an implicit demand or request for sexual favours. Conduct which might appear to be inconsequential when considered in isolation might have an entirely different connotation when considered with other relevant facts. Similarly, conduct which might on its face appear to amount to sexual harassment might not be so when examined in context. Obviously, the Tribunal must act carefully. There will be difficult questions of fact and degree to determine: cf Hayne JA in Spencer v Dowling [1997] 2 VR 127 at 156 to 157.
In this case, in respect of some of the allegations made by the appellant, the Tribunal has determined the conduct which it found had occurred did not constitute sexual harassment because there was no evidence as to the context in which it had occurred. In those instances, which I will identify in a moment, it was open to the Tribunal to consider whether other conduct of the respondent found to have occurred provided the context. The reasons of the Tribunal indicate that it failed to do so and, to that extent, the Tribunal has not discharged its duty.

Difficulties with the Evidence

I will, in a moment, examine the Tribunal’s findings in relation to each allegation. Before doing so, it is desirable to note some difficulties with the evidence. For the reasons which follow, there is no ground for this court interfering with the findings made by the Tribunal as to what occurred on each occasion the subject of an allegation.
The Tribunal identified the following difficulties. First, the Tribunal found that neither the appellant nor the respondent was entirely credible. Secondly, the Tribunal was concerned that the appellant’s evidence might have been coloured by the fact that the respondent and his wife had terminated her tenancy. The Tribunal was careful to note that the appellant’s motivation had a limited relevance. It said:
“Of course, motivation is irrelevant where sexual harassment or discrimination has occurred, but it might be relevant to the determination of whether events occurred precisely as alleged by the complainant.”

In my view, the Tribunal has correctly stated the position. The third difficulty with the evidence was that some five years had elapsed since the complaint had been lodged. There were, therefore, understandable difficulties in witnesses recalling events which had occurred up to six years earlier. These difficulties were compounded by the fact that the Tribunal did not always have evidence of the context in which events which were alleged to constitute sexual harassment had occurred.

Another significant factor was the change in the relationship between the appellant and the respondent over the period of the allegations. At first, the relationship was amicable, to use the words of the appellant. After the “mad moll” statement had been made, the relationship deteriorated badly. The nature of the relationship between two individuals may often influence the manner in which they will conduct themselves with one another. Words or conduct which might be acceptable in one set of circumstances may, in another context, constitute sexual harassment. The Act recognises these factors by requiring that the complainant should feel offended, humiliated or intimidated by the conduct.
All of these factors serve to reinforce the conclusion that this court is unable to go behind the findings of fact made by the Tribunal as to what occurred on each occasion when it is alleged that the respondent had been guilty of sexual harassment. Counsel for the appellant did not point to any respect in which the Tribunal had failed or use or had misused its advantage of seeing and hearing the witnesses or had made any improbable finding of fact: Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479. Thus, no reason has been demonstrated why this court should not accept the findings of fact in respect of each allegation. Once the findings of fact have been made, it is a question of law whether the facts as found constituted sexual harassment. This court may, therefore, in some circumstances, be in as good a position as the Tribunal to determine whether the facts as found constitute sexual harassment as defined.

The Tribunal’s Findings

The Tribunal has not made any finding in respect of the first allegation (the statement about knocking on the door) other than to state that the evidence was inadequate as to the context and manner of delivery of the question. The Tribunal ought to have made a finding as to what was said. Once it had made that finding, the Tribunal ought to have considered what occurred against the admitted telephone call from the respondent to the appellant the next day and against the other conduct which the Tribunal found had occurred between the appellant and the respondent which is the subject of other allegations. In this respect, the conduct found to have occurred on the occasions of the second, fourth and fifth allegations might have provided the context in which to consider the events the subject of the first allegation. I will return to this question.
The second allegation was that the appellant had telephoned the respondent and invited her to his home. The Tribunal found that the call was made but added that there was insufficient evidence to find that what was said amounted to an implied request for a sexual favour. One difficulty with this conclusion is that the Tribunal has failed to consider the telephone call in the context of the manner in which it found the respondent conducted himself with the appellant. The Tribunal also had to weigh its finding against the paucity of the evidence. The Tribunal ought to have examined both these issues. Its failure to do so calls its conclusion into question.

The Tribunal’s findings concerning the third allegation (the frequent calls to the appellant’s front door) is directly against the appellant. There were occasions when the respondent was entirely justified in calling at the front door. As the appellant’s allegations were of a general nature, the Tribunal found that the evidence was insufficient to make any finding as to what had occurred. In other words, the appellant failed to prove what had occurred. In the absence of those primary facts, the Tribunal had no alternative but to determine that the respondent had not been guilty of sexual harassment.
The Tribunal found that the appellant had proved the fourth allegation (the conversation concerning boyfriends) but held that, in the absence of evidence as to the context in which the conversation had occurred, it could not make any finding that the respondent had made an implied request for a sexual favour. The conduct the subject of the first, second and fifth allegations was capable of providing the context against which the words and actions could be assessed. The terms in which the Tribunal’s findings are expressed indicate that it has simply looked at this allegation in isolation without considering the conduct which was the subject of those other allegations.
The findings in relation to the fifth allegation (the invitation to go to Alice Springs) are subject to the same criticisms. The Tribunal’s findings indicate once again that it has considered the allegation in isolation. Had the Tribunal considered the allegation against the background of the first, second and fourth allegations, it might have reached a different view as to the weight to be given to the evidence of the appellant and respondent and so might have reached a different conclusion.
The sixth allegation (the “mad moll” statement) could not constitute sexual harassment as defined since it did not fall within any of the three kinds of sexual harassment defined by s87(11). The word “moll” signifies a mistress or girlfriend of a gangster or thief or it may refer to a prostitute. When coupled with the epithet “mad”, it becomes a remark of an abusive and offensive nature. Whilst it certainly displays a gross departure from good taste, it is not a remark with sexual connotations of the kind to which s87(11)(c) refers.
The seventh allegation is that the respondent blew a kiss to the appellant. The Tribunal found that it was likely that he did so in response to what it called “strong verbal abuse” by the appellant. It was a finding which was open to the Tribunal. No basis for interfering with the finding has been shown. In addition, the act would constitute sexual harassment only if it was an unsolicited and intentional act of personal intimacy: see s87(11)(a). Given the context and the circumstances in which the respondent blew the kiss, it would be an abuse of language to describe the throwing of the kiss in the particular circumstances of this case as an act of personal intimacy. There are, of course, occasions when throwing of a kiss is an act of personal intimacy. There are other times when it plainly is not. This was conduct of the latter kind. The Tribunal was correct in finding that this did not constitute an act of sexual harassment.
The eighth allegation is that the respondent asked “for a cuddle”. The Tribunal’s reasons imply that it did not accept the appellant’s evidence. That is a finding based on the Tribunal’s assessment of her evidence and, for the reasons given earlier, no ground has been shown which justifies this court interfering with that finding. It is, therefore, unnecessary to examine whether the Tribunal was correct in finding that, even if it accepted the appellant’s evidence, the act would not constitute a demand or request either directly or by implication for a sexual favour from the appellant. In reaching that conclusion, the reasons of the Tribunal indicate that it had regard to the circumstances in which the remark was made. It was made while the respondent, who was holding a gun, was walking past the appellant’s rented premises. The remark was made when relations between the appellant and respondent had soured. The respondent had reason to be in the area. The remark cannot be divorced from its context. I do not think that the Tribunal erred in finding that it was not a request for a sexual favour. Instead, it was another of the respondent’s unpleasant remarks to the appellant.
The Tribunal’s finding in relation to the ninth allegation appears to omit a negative. It reads:
“The respondent denies the allegation. Given the level to which the relationship between the parties had deteriorated by this time, we think it likely that the respondent behaved as stupidly as the allegation suggests. However, we are of the view that if the acts did take place, they amounted rather to a rude gesture than to a demand or request directly or by implication, for a sexual favour from the complainant, or to an act of physical intimacy.”

The context suggests that the Tribunal intended to say

“Given the level to which the relationship between the parties had deteriorated by this time, we do not think it likely that the respondent behaved as stupidly as the allegation suggests.”
or
“... we think it unlikely...”.

The intention of the Tribunal to find that the respondent had not acted in the way alleged is demonstrated by the manner in which the following sentence is expressed and, in particular, by the use of the conjunction “however” and the conditional “if the acts did take place”. The Tribunal is, thus, adopting an approach very similar to that which it adopted when finding that the respondent had not acted as alleged in the eighth allegation, that is to say, finding that the appellant has not proved the allegation and adding that, even if she had, it did not constitute sexual harassment as defined. Again, there is no basis for interfering with the finding of fact. However, even if the Tribunal has found that the respondent behaved in the manner alleged, his conduct did not constitute sexual harassment. Even if the respondent did blow a kiss to the appellant, gyrate his hips and thrust his pelvis forward, the circumstances of the conduct belied a request for a sexual favour. On the appellant’s own case, the actions followed an altercation between her and the respondent and occurred when the appellant began to drive off in a motor car. The Tribunal correctly categorised the conduct as a rude gesture rather than an act of sexual harassment as defined in s87(11).

The Tribunal obviously had difficulty accepting the appellant’s tenth allegation, namely, the touching of fingers while assisting the respondent to fix the door. The difficulty was two-fold. First, the Tribunal doubted whether the act occurred and, secondly, it was not prepared to find on the balance of probabilities that it constituted an act of intimacy. Once the Tribunal had decided that it was not satisfied that the act occurred, the appellant was bound to fail. The Tribunal acknowledged that the act was capable of constituting physical intimacy of the kind proscribed by s87(11) but was not satisfied that, in all the circumstances, it occurred. The finding was plainly open and no ground has been demonstrated for this court to interfere.
In the result, the appellant is left with only four instances of conduct capable of constituting sexual harassment as defined, namely, the conduct the subject of the first, second and fourth and fifth allegations. The Tribunal has failed to examine those allegations as a whole for the purposes of determining whether any one or more provided the context for determining whether, in all the circumstances, the conduct constituted sexual harassment. The fact that the appellant had failed in respect of most of her allegations require the result that she could not be believed in respect of the other allegations. There may be other reasons for finding that the respondent’s conduct did not constitute sexual harassment. But these are all matters for the Tribunal, not this court, to weigh and determine.
For all of these reasons, the appellant succeeds in respect of part only of her appeal. I would allow the appeal in respect of the first, second, fourth and fifth allegations and remit the matter to the Tribunal for further consideration in the light of these reasons.

[1998] SASC 6948

13 November 1998