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Federal Discrimination Law Online

Chapter 7 Damages and Remedies

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7.1 Section 46PO(4) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth)

Section 46PO(4) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (‘HREOC Act’) provides:

(4) If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:

(a) an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;

(b) an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;

(c) an order requiring a respondent to employ or re-employ an applicant;

(d) an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;

(e) an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;

(f) an order declaring that it would be inappropriate for any further action to be taken in the matter.

This chapter discusses the general principles that apply to the making of orders under this provision. It also provides an overview of the orders made by the Federal Court and FMC under s 46PO(4) since the federal unlawful discrimination jurisdiction was transferred to those courts on 13 April 2000.

The tables at 7.2.2-5 set out damages awards in all federal discrimination cases decided since 13 April 2000.

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7.2 Damages

7.2.1 General approach to damages

(a) Torts principles apply

The Full Federal Court discussed the approach to damages under the SDA in the matter of Hall v Sheiban.[1] Lockhart, Wilcox and French JJ delivered separate judgments and while there is no clear ratio on the issue of damages, the case has been cited for the proposition that torts principles are a starting point for the assessment of damages under discrimination legislation, but those principles should not be applied inflexibly.[2]

Lockhart J expressed the view that:

As anti-discrimination, including sex discrimination, legislation and case law with respect to it is still at an early stage of development in Australia, it is difficult and would be unwise to prescribe an inflexible measure of damage in cases of this kind and, in particular, to do so exclusively by reference to common law tests in branches of the law that are not the same, though analogous in varying degrees, with anti-discrimination law. Although in my view it cannot be stated that in all claims for loss or damage under the Act the measure of damages is the same as the general principles respecting measure of damages in tort, it is the closest analogy that I can find and one that would in most foreseeable cases be a sensible and sound test. I would not, however, shut the door to some case arising which calls for a different approach.[3]

His Honour went on to say that, generally speaking, the correct approach to the assessment of damages under the SDA is to compare the position the complainant might have been in had the discriminatory conduct not taken place with the situation in which the complainant was placed by reason of the conduct of the respondent.[4] This approach has been followed in a number of subsequent cases under the SDA, RDA and DDA.[5]

(b) Multiple causes of injury/loss

In Gama v Qantas Airways Ltd (No 2),[6] the applicant made various allegations of race and disability discrimination in employment. Whilst most of the allegations failed, the court accepted that certain derogatory remarks amounted to discrimination on the basis of the applicant’s race and/or disability. In assessing damages, Raphael FM calculated damages by finding, firstly, that general damages for his depressive illness would have been assessed at $200,000. His Honour then awarded 20% of that sum, on the basis that many of his allegations of discrimination, which had been said to have caused his depressive illness, had failed.[7]

On appeal,[8] the Full Federal Court held that Raphael FM’s approach to the assessment of damages disclosed no error, stating:

While the reasoning may be less than satisfactory, it reflects the difficulties of assessment of general damages where depressive illness is a serious element in the sequelae of a relatively few and isolated episodes of discriminatory conduct. ... [Section 46PO(4)(d)] does not require that a damages award must provide full compensation. It may be that a lesser compensatory award will be made according to the circumstances of the case. The fact that the discriminatory conduct was a contributor to the onset of a depressive illness but not its sole cause, may be taken into account when determining what is an appropriate sum ‘by way of compensation’.[9]

The Full Court overturned the finding of Raphael FM that certain of the derogatory remarks constituted disability discrimination. Nevertheless, the Court refused to disturb the overall award of damages, holding:

Given the substantial congruency of the events which gave rise to the two sets of findings there is little point in remitting the disability claim back to the Federal Magistrates Court for determination. The substance of the damages assessed does not turn upon any distinction between the findings in relation to racial discrimination and those in relation to disability discrimination.[10]

(c) Hurt, humiliation and distress

In a number of cases it has been held that in assessing general damages for hurt, humiliation and distress, awards should be restrained in quantum, although not minimal. Such awards should not be so low as to diminish the respect for the public policy of the legislation. In Hall v Sheiban,[11] Wilcox J cited with approval (in the context of damages for sexual harassment) the following statement of May LJ in Alexander v Home Office:[12]

As with any other awards of damages, the objective of an award for unlawful racial discrimination is restitution. Where the discrimination has caused actual pecuniary loss, such as the refusal of a job, then the damages referrable to this can be readily calculated. For the injury to feelings however, for the humiliation, for the insult, it is impossible to say what is restitution and the answer must depend on the experience and good sense of the judge and his assessors. Awards should not be minimal, because this would tend to trivialise or diminish respect for the public policy to which the Act gives effect. On the other hand, just because it is impossible to assess the monetary value of injured feelings, awards should be restrained. To award sums which are generally felt to be excessive does almost as much harm to the policy and the results which it seeks to achieve as do nominal awards. Further, injury to feelings, which is likely to be of a relatively short duration, is less serious than physical injury to the body or the mind which may persist for months, in many cases for life.[13]

In Clarke v Catholic Education Office[14] (‘Clarke’), however, Madgwick J emphasised the compensatory nature of damages, stating:

It was faintly suggested, on the strength of remarks made in a case decided by the Human Rights & Equal Opportunity Commission, that there were policy reasons why damages for a breach of the DDA should be substantial. It was also faintly suggested that an award should not be so low that it might be eaten up by non-recoverable costs. Both propositions must be rejected. Damages are compensatory and no more.[15]

His Honour awarded $20,000 plus $6,000 in interest for the hurt caused to the student on whose behalf the case had been brought (a sum upheld on appeal and described as ‘relatively modest’[16]). The respondent in that matter was found to have indirectly discriminated against a student by requiring him to receive teaching at one of their schools without the assistance of an Auslan interpreter. The basis for the award of general damages was as follows:

Fortunately, as matters transpired, the injury to [the student] has probably not been great: the injury to his parents’ sensibilities may have been acute but the damages are not to compensate them. They are to compensate the ‘aggrieved person’, namely [the student].

[The student] would have been distressed and confused by the events in question. As a result of the respondents’ proscribed conduct, he was effectively removed from the company of his primary school peers and friends on his transition to high school. Further and very significantly, these were friends who had learned Auslan. That would be very distressing. His transition was from a religious to a secular milieu, an added degree of change to cope with. As a child, it is very likely that he would and did register the respondents’ attitude as one of rejection of him on account of his deafness, even though the disinterested adult can see that the position was much more complex than that. That would have been hurtful.

In the scheme of things, the harm to [the student] is likely to prove to have been transient and not extreme. There is no warrant to inflate damages. In my view $20,000 together with some allowance for interest on three quarters of that sum would be ample compensation. I assess such interest at $6,000.[17]

Chris Ronalds SC has commented as follows on the issue of general damages:

The damages in the discrimination arena under this head are relatively modest and amounts between $8000-$20000 are common. It appears that the courts have not accorded much weight or significance to the emotional loss and turmoil to an applicant occasioned by acts of unlawful discrimination and harassment. On some occasions, there was not sufficient or any evidence to support a claim for such damages.[18]

In Shiels v James,[19] Raphael FM suggested, in the context of a sexual harassment matter, that the authorities indicated a range for damages for hurt and humiliation of $7,500-$20,000. However, Branson J in Commonwealth v Evans[20] commented, without expressing a concluded view, that this range seemed ‘higher than the authorities fairly support’.[21]

In Phillis v Mandic,[22] Raphael FM noted the difficulty in assessing appropriate damages for hurt and humiliation in discrimination cases and stated:

It is often the case that the Courts are assisted in this determination by medical evidence in the form of psychological or psychiatric assessments. Given that it is the effect of the accepted acts of harassment and not the act itself that is relevant, it is appropriate that due regard is had to the expertise of the medical profession.[23]

His Honour also suggested that comparisons with damages awards in other cases should be undertaken with caution:

At some point judicial officers are required to assess damages having regard to the individual circumstances before them. A degree of comparison between decided cases is both unavoidable and appropriate. However care needs to be taken to ensure that particular acts are not ‘rated’. To do so ignores the requirement to ‘consider the effect on the complainant of the conduct complained of’: Hall v Sheiban [(1989) 20 FCR 217 at 256]. The award of general damages in discrimination matters is not intended to be punitive but rather to place complainants in the situation that they would otherwise have been in had the harassment not occurred: Howe v Qantas [2004] FMCA 242; Hall v Sheiban (supra). To do so clearly requires specific reference to a person’s individual circumstances.[24]

In South Pacific Resort Hotels Pty Ltd v Trainor,[25] the appellant challenged the decision at first instance[26] to award damages to a victim of sexual harassment who had a pre-existing ‘significant psychological vulnerability’. The appellant argued that as the respondent was not a person of ‘normal fortitude’, she had not made out any entitlement to damages because, as a threshold matter, the events relied upon must have been such as would have affected a person of ‘normal fortitude’. The submission was said to be reinforced by the fact that the respondent’s vulnerability was not disclosed to the employer at the time she was employed so that it would be ‘quite unfair, and contrary to the policy of the SDA’, to impose liability on the appellant (employer) for the unseen consequences of the harassment committed by the respondent’s co-worker.[27]

It was also argued that ‘the notion of what a reasonable person would have anticipated, which forms an element of the statutory definition of sexual harassment in s 28A of the SDA, carries through to an assessment of damages’. Hence, ‘if the overall reaction of a victim could not have been anticipated by a reasonable person any damage suffered by such a person would be altogether outside the contemplation of the statute and thus not recoverable’.[28]

The Full Federal Court rejected these submissions. On the issue of ‘normal fortitude’, Black CJ and Tamberlin J, with whom Kiefel J agreed, stated:

Care should be taken to avoid the introduction of the notion of ‘normal fortitude’ into discrimination law and particularly into the law relating to sexual harassment. It is a potentially dangerous irrelevancy in this context, readily capable of misuse in support of the false idea – perhaps hinted at rather than stated bluntly – that some degree of sexual harassment (or some other form of unlawful discrimination) would and should be accepted by persons of normal fortitude. With respect to sexual harassment the true and only standard is that prescribed by the statutory definition.

The submission that Ms Trainor was in some way disqualified from an award of damages because she did not disclose her particular vulnerability to her employer seems to have been based on no more than a general notion of unfairness. In any case, there was no evidence that Ms Trainor knew that she suffered from a psychiatric condition that should have been disclosed to the employer. Nor, indeed, was there any evidence to suggest that she was (or thought she was) unable to cope with normal working conditions – conditions that she was entitled to expect would not involve acts of sexual harassment by another employee in the accommodation provided for her by the employer.[29]

The Court also rejected the notion that the ‘reasonable person’ test in the context of sexual harassment carried over into the assessment of damages. Black CJ and Tamberlin J noted that there is a ‘sharp distinction’ drawn by the legislative scheme between

on the one hand, the definition of sexual harassment in the SDA and the operation of that Act in making sexual harassment unlawful in certain circumstances and, on the other hand, the power conferred by the HREOC Act to make an order for damages by way of compensation if the court is satisfied that there has been unlawful discrimination.[30]

In the context of a successful claim of unlawful disability discrimination,[31] Heerey J awarded the applicant $20,000 for non-economic loss. His Honour noted that the applicant ‘has suffered substantial mental anguish. Perhaps he does not have a particularly stoic makeup, but, to apply the aphorism of the common law, the unlawful discriminator must take the plaintiff as it finds him’.[32]

(d) Aggravated and exemplary damages

In Hall v Sheiban[33] the Federal Court held for the first time that aggravated damages may be awarded in discrimination cases. Lockhart J cited with approval the statement of May LJ in Alexander v Home Office[34] that aggravated damages may be awarded where the defendant behaved ‘high-handedly, maliciously, insultingly or oppressively in committing the act of discrimination’.[35] Further, his Honour noted that the circumstances in which the defendant’s conduct took place may also give rise to an element of aggravation, such as where the relationship is one of employer and employee.[36] As to the nature of aggravated damages, Lockhart J went on to state:

It is fundamental that an award of a larger amount of damages by way of aggravated damages serves to compensate the victim for damage occasioned by the defendant's conduct where an element of aggravation is involved in that conduct, and not to punish the defendant.[37]

Aggravated damages have also been awarded on the basis of the manner in which a respondent conducts proceedings. In the case of Elliott v Nanda (‘Nanda’),[38] Moore J referred to a range of authorities, including discrimination cases, and noted that it is

generally accepted that the manner in which a defendant conducts his or her case may exacerbate the hurt and injury suffered by the plaintiff so as to warrant the award of additional compensation in the form of aggravated damages.[39]

His Honour went on to note that in the context of anti-discrimination law ‘a wide variety of matters may affect the decision to award aggravated damages in any particular case’.[40] He stated, however, that the stress of litigation is not, in itself, sufficient to attract an award of aggravated damages: ‘the defendant must conduct his or her case in a manner which is unjustifiable, improper or lacking in bona fides’.[41]

In Nanda, the first respondent was found to be liable to pay the applicant the amount of $5,000 in aggravated damages to compensate her for the additional stress and mental anguish resulting from the considerable delay to the resolution of the complaint caused by him.[42]

In Font v Paspaley Pearls Pty Ltd[43] (‘Font’), the applicant sought aggravated damages by reason of the conduct of the respondents in the course of the litigation. Raphael FM noted:

In this case the conduct of the respondents complained of is the putting into evidence, by way of affidavits of the respondents witnesses and cross-examination of the applicant, various matters relating to the way she conducted herself with men, her conversations on sexual matters and her dress. Although the applicant sought to have these matters removed from the affidavits, I was pressed by the respondents to keep them in. I did so reluctantly and subject to their relevance. I found nothing relevant about them. They did not assist me in anyway to form a view about the applicant or the truth of her allegations ... I accept the submission by the applicant’s Counsel that the former evidence was no more than an attempt to blacken the character of the applicant so that I should think less favourably of her in coming to any conclusions about the truthfulness of her evidence or the quantum of any damage she might have suffered. I think the whole exercise was unjustifiable and inappropriate and must have added to the distress felt by the applicant in giving her evidence and proceeding with the claim.[44]

In considering the appropriate remedy given the respondent’s conduct, Raphael FM distinguished between ‘exemplary’ and ‘aggravated’ damages. His Honour noted that exemplary damages are more punitive than compensatory in character. The type of action which might occasion an award of exemplary damages is

reprehensible conduct which might perhaps have warranted punishment, rather than findings of the infliction of hurt, insult and humiliation.[45]

His Honour continued:

The importance of the distinction between compensatory and punitive damages is that an applicant must establish a loss in order to be awarded compensatory damages. Even where that loss is constituted by something as abstract as hurt or humiliation the Courts have striven to measure those feelings and give them a value.[46]

When considering conduct which took place during the course of the trial, Raphael FM suggested that it may be more appropriate to award exemplary, rather than aggravated damages:

Is the applicant expected to ask for an adjournment to produce further medical evidence of her distress occasioned by the unwarranted prosecution of the respondent's case? I think not. I think it is safer to recognise... the punitive element in these damages.[47]

His Honour awarded $7,500 in exemplary damages. The fact that the applicant had sought aggravated, rather than exemplary, damages was not, in his Honour’s view, a bar to recovery:

The Federal Magistrates Court is not a court of strict pleading and this is particularly true in matters brought to it under the HREOC Act for breaches of one of the Commonwealth Anti-discrimination Acts. I do not think that the fact that the conduct complained of was described as entitling the applicant to aggravated damages, when in fact a proper description would have included exemplary damages, should prevent the applicant from recovering ... All that I propose to do is to give the award which I intend to make its proper nomenclature, and that is ‘exemplary damages’.[48]

In Hughes v Car Buyers Pty Ltd[49] (‘Hughes’), the applicant sought and was awarded $5,000 in aggravated damages for the additional mental distress, frustration, humiliation and anger caused by the conduct of the respondent in the course of the proceedings. The respondent had failed to respond to correspondence from HREOC about the complaint made by the applicant, and failed to involve themselves in the court proceedings. Walters FM found that the resolution of the applicant’s complaint to HREOC was significantly delayed by the refusal of the respondents to involve themselves in the relevant processes in any way. His Honour held that the applicant had suffered additional mental distress because of the delay, and because of her perception that the respondents considered her complaint and the subsequent proceedings were not worthy of acknowledgement or response.

While the applicant did not seek exemplary damages, Walters FM stated (in obiter) that he disagreed with Raphael FM’s conclusion in Font that the court has a power to award exemplary damages. Walters FM expressed the view that under s 46PO(4) of the HREOC Act, a respondent can only be ordered to pay to an applicant ‘damages by way of compensation for any loss or damage suffered because of the conduct of the respondent’ (s 46PO(4)(d)). His Honour went on to state that ‘[i]t follows, in my opinion, that although the court has power to award aggravated damages, it does not have power to award exemplary damages’.[50]

Walters FM cited[51] the following passage from the judgment of Windeyer J in Uren v John Fairfax and Sons Pty Ltd: [52]

aggravated damages are given to compensate the plaintiff where the harm done to him by a wrongful act was aggravated by the manner in which the act was done; exemplary damages, on the other hand, are intended to punish the defendant, and presumably to serve one or more of the objects of punishment – moral retribution or deterrence.

Walters FM observed that compensatory damages must be approached by considering the effect of the wrongful act on the plaintiff, whereas exemplary damages (being punitive) are to be approached from a different perspective. In considering whether to award exemplary damages, the focus of the inquiry is on the wrongdoer, not upon the party who was wronged.[53]

Similarly, in Frith v The Exchange Hotel,[54] Rimmer FM held that the court has power to award aggravated damages under s 46PO(4) but does not have the power to award exemplary damages.[55] Her Honour appears to have reached this view on the basis of a line of authorities that have held that an award of exemplary damages are not compensatory in nature but are intended to punish a respondent.[56] Her Honour further referred to the decision of Harris v Digital Pulse,[57] in which Spigelman CJ questioned the description of exemplary damages as ‘damages’.

Rimmer FM adopted the findings of Walter FM in Hughes that aggravated damages are compensatory in nature[58] but declined to award aggravated damages because she found that the respondent had been entitled to defend himself by attacking the credit of the applicant and had not conducted the proceedings in any way that would justify an award of aggravated damages.[59]

Note, however, that these decisions do not appear to have considered the apparently inclusive nature of the list of potential orders that a court may make upon a finding that there has been unlawful discrimination. As Carr J in McGlade v Lightfoot[60] observed, ‘the list of specified orders in s 46PO(4) is not exhaustive – see the use of the word "including"’.[61] This suggests that the Court may, indeed, enjoy the power to make orders for exemplary damages in appropriate cases.

(e) A finding of discrimination is necessary

In Moskalev v NSW Department of Housing[62] Driver FM commented on the availability of remedies under the HREOC Act. Driver FM held that although the claim for discrimination had not been made out in that case, an order could be made directing the respondent to reassess the applicant’s entitlement to priority housing. His Honour stated:

As I noted in Tyler v Kesser Torah College [2006] FMCA 1, at [108] s.46PO(4) of the HREOC Act is not an exhaustive statement of the orders that may be made by the Court in proceedings under that Act. In my view, even where unlawful discrimination is not established, the Court may, in appropriate circumstances (as here) use s.15 of the Federal Magistrates Act 1999 (Cth) to correct administrative error.[63]

The Department of Housing appealed Driver FM’s order that it reassess the eligibility of the applicant and his family for priority housing. In New South Wales Department of Housing v Moskalev,[64] Cowdroy J upheld the appeal on the basis that there had been no finding of unlawful discrimination. As such, his Honour held that there was no power for the Court to make the order it did against the Department. His Honour stated:

The order could have been justified under s 46PO (4) of the HREOC Act had a finding of unlawful discrimination been made. In the absence of any finding of unlawful conduct by the Department there was no jurisdiction under s 15 of the FMA[65] which could support the order and the request to be placed on the priority housing list does not constitute an ‘associated matter’ under s 18 of the FMA.[66] It follows that the order was made ultra vires.[67]

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7.2.2 Damages under the RDA

The following table gives an overview of damages awarded under the RDA since the transfer of the hearing function to the FMC and the Federal Court on 13 April 2000. The reasoning underlying those awards is summarised below.

Table 1: Overview of damages awarded under the RDA
Case
Damages awarded
(a)
Carr v Boree Aboriginal Corporation [2003] FMCA 408
Total Damages: $21,266.50
$11,848.61 (economic loss)
$1,917.89 (interest)
$7,500.00 (non-economic loss)
(b)
McMahon v Bowman [2000] FMCA 3
$1,500 (non-economic)
(c)
Horman v Distribution Group [2001] FMCA 52
$12,500 (non-economic: including medication costs)
(d)
San v Dirluck Pty Ltd (2005) 222 ALR 91
$2,000 (non-economic)
(e)
Baird v Queensland (No 2) [2006] FCAFC 198
Damages, including interest, awarded as follows:
Baird: $17,000
Creek: $45,000
Tayley: $37,000
Walker: $45,000
Deeral: $85,000
Gordon: $19,800
(f)
Gama v Qantas Airways Ltd (No 2) [2006] FMCA 1767, upheld on appeal: Qantas Airways Ltd v Gama [2008] FCAFC 69
Total Damages: $71,692
$40,000 (non-economic loss)
$31,692 (medical expenses and interest)
(g)
Silberberg v The Builders Collective of Australia Inc [2007] FCA 1512
No damages awarded

(a) Carr v Boree Aboriginal Corporation

In Carr v Boree Aboriginal Corporation[68] Raphael FM made a finding that the respondent employer, through its agents and servants, had unlawfully discriminated against Ms Carr and dismissed her because of her ‘race or non-Aboriginality’.[69] In the absence of any evidence to the contrary, his Honour accepted the claimed amount for damages and awarded the sum of $11,848.61 for loss of earnings, made up of lost wages, holiday pay and unpaid overtime together with interest. In making an award of $7,500.00 for general damages, Raphael FM took into account that the applicant had ‘suffered hurt, humiliation and distress’[70] and the fact that no medical evidence had been adduced.

(b) McMahon v Bowman

In McMahon v Bowman,[71] Driver FM considered the appropriate amount of the award of damages for an act of racial hatred which had taken place as part of a neighbourhood dispute. His Honour did not award damages in respect of the altercation between Mr Bowman and Mr McMahon that had formed part of the complaint ‘as Mr McMahon should not be twice punished for his actions’[72] and the altercation was the subject of proceedings in the local court where Mr McMahon was defending a charge of assault. His Honour was of the view that the words the subject of the complaint, addressed as they were to an entire family including impressionable children, were insulting and the appropriate amount of compensation was $1,500.

(c) Horman v Distribution Group

In Horman v Distribution Group[73] the applicant partially succeeded in her complaints under the RDA and the SDA. In relation to her claims under the SDA, Ms Horman alleged that she had been subjected to unacceptable and inappropriate comments from fellow workers, physical approaches such as texta writing on her body, as well as the pulling of bra straps and touching of buttocks. In addition, Raphael FM held that Ms Horman had been discriminated against on the grounds of her pregnancy when her employment was unlawfully terminated. The respondent was also found to have directed offensive and derogatory terms to the applicant contrary to s 18C of the RDA. In awarding damages, Raphael FM took into account the medical symptoms the applicant suffered (mainly anxiety and panic attacks, confirmed by medical practitioners, and concern over the possibility of miscarriage), and the type of incidents to which the applicant was subjected. His Honour awarded $12,500 including special damages for medication costs.[74]

(d) San v Dirluck Pty Ltd

In San v Dirluck Pty Ltd,[75] Raphael FM found that the applicant had been subject to acts of racial hatred and sexually harassed. With regard to the claim for racial hatred, the manager of the store owned by the respondent had made comments to the applicant such as ‘That’s right, fuck off ching chong go back home’ and ‘Good I haven’t seen an Asian come before’.

Raphael FM also held that the manager sexually harassed the applicant by consistently and almost exclusively making remarks of a sexual nature directed at the applicant and asking her questions about her love life such as: ‘How’s your love life?’, ‘Oh, got your period?’, ’Did you get any last night?’

Raphael FM awarded the applicant $2,000 finding that whilst the comments were hurtful there was no evidence to suggest that the comments had caused the applicant to leave her job. Neither was there any expert evidence to suggest that the applicant suffered anything more than hurt.[76]

(e) Baird v Queensland

In Baird v Queensland,[77] the Full Federal Court awarded damages as agreed between the parties, having found that the underpayment of wages to the Aboriginal appellants was racially discriminatory. The amounts awarded to the individual plaintiffs ranged between $17,000 and $85,000.

(f) Gama v Qantas Airways Ltd

In Gama v Qantas Airways Ltd (No 2),[78] Raphael FM awarded the applicant the sum of $71,692 in damages, $40,000 of which was for non-economic loss. His Honour accepted medical evidence that the applicant experienced a severe depressive illness and that the unlawful discrimination contributed to that illness. Raphael FM held that remarks had been made to Mr Gama which contravened the RDA and/or the DDA, including: ‘You should be walking up the stairs like a monkey’. His Honour noted that the applicant had not been able to make out the more serious allegations in his claim and found that the discriminatory treatment contributed 20% to his injury.

On appeal,[79] the Full Federal Court upheld the award and calculation of damages, notwithstanding that it overturned the finding at first instance that certain of the remarks constituted disability discrimination.

g) Silberberg v The Builders Collective of Australia Inc

In Silberberg v The Builders Collective of Australia Inc,[80] Gyles J held that the second respondent had contravened s 18C of the RDA by posting messages on a forum maintained by the first respondent, the Builders Collective. Gyles J declared that the conduct of the second respondent contravened the RDA, and made further orders restraining the second respondent from publishing the messages the subject of the complaint, or any other similar material, either on the internet or elsewhere. His Honour did not, however, make an order for damages and it does not appear that any were sought by the applicant.

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7.2.3 Damages under the SDA generally

The following table gives an overview of damages awarded under the SDA since the transfer of the hearing function to the FMC and the Federal Court on 13 April 2000. The reasoning underlying those awards is summarised below. Note that sexual harassment matters are not dealt with in this section: they are considered separately in 7.2.4.

Table 2: Overview of damages awarded under the SDA
Case
Damages awarded
(a)
Font v Paspaley Pearls Pty Ltd [2002] FMCA 142
Total Damages: $17,500
$7,500 (exemplary damages)
$10,000 (non-economic loss)
(b)
Grulke v KC Canvas Pty Ltd [2000] FCA 1415
Total Damages: $10,000
$7,000 (economic loss)
$3,000 (non-economic loss)
(c)
Cooke v Plauen Holdings Pty Ltd [2001] FMCA 91
$750 (non-economic loss)
(d)
Song v Ainsworth Game Technology Pty Ltd [2002] FMCA 31
Total Damages: $22,222 (approx)
$10,000 (non-economic loss)
$244.44 per week from 21 February 2001 until the date of judgment,
less $977.76 already paid
(economic loss)
(e)
Escobar v Rainbow Printing Pty Ltd (No 2) [2002] FMCA 122
Total Damages: $7,325.73
$2,500 (non-economic loss)
$4,825.73 (economic loss)
(f)
Mayer v Australian Nuclear Science & Technology Organisation [2003] FMCA 209
Total Damages: $39,294
$30,695 (economic loss: includes salary, motor vehicle benefits and superannuation)
$5,000 (non-economic loss)
$3,599 (interest)
(minus an amount due for income tax, to be paid to the Australian Taxation Office)
(g)
Evans v National Crime Authority [2003]
FMCA 375, partially overturned on appeal: Commonwealth v Evans [2004] FCA 654
Total Damages: $41,488.57
$12,000 (non-economic loss – reduced from $25,000 on appeal)
$7,493.84 (interest – subject to recalculation after appeal)
$21,994.73 (economic loss – not challenged on appeal)
(h)
Rispoli v Merck Sharpe & Dohme (Australia) Pty Ltd [2003] FMCA 160
$10,000 plus interest (non-
economic loss)
(i)
Kelly v TPG Internet Pty Ltd (2003) 176 FLR 214
$7,500 (non-economic loss)
(j)
Gardner v All Australia Netball Association Ltd (2003) 197 ALR 28
$6,750 (non-economic loss)
(k)
Ho v Regulator Australia Pty Ltd [2004] FMCA 62
$1,000 (non-economic loss)
(l)
Howe v Qantas Airways Ltd (2004) 188 FLR 1; Howe v Qantas Airways Ltd (No 2) [2004] FMCA 934
Total Damages: $27,753.85 (plus interest)
$3,000 (non-economic loss)
$24,753.85 (economic loss) plus interest
(m)
Dare v Hurley [2005] FMCA 844
Total Damages: $12,005.51
$3,000 (non-economic loss)
$9,005.51 (economic loss)
(n)
Fenton v Hair & Beauty Gallery Pty Ltd [2006] FMCA 3
Total Damages: $1,338
$500 (non-economic loss)
$838 (economic loss – including associated contractual claim)
(o)
Rankilor v Jerome Pty Ltd [2006] FMCA 922
$2,000 (non-economic loss including out-of-pocket expenses)
(p)
Iliff v Sterling Commerce (Australia) Pty Ltd [2007] FMCA 1960, upheld on appeal: Sterling Commerce (Australia) Pty Ltd [2008] FCA 702
$22, 211.54 (economic loss - plus interest[81] and less tax)

 

(a) Font v Paspaley Pearls Pty Ltd

In Font v Paspaley Pearls Pty Ltd,[82] it was held that the applicant had been the victim of sexual harassment and discrimination in the course of her employment in the respondent’s jewellery store. In addition to $7,500 in exemplary damages awarded for the ‘unjustifiable and inappropriate’ manner in which the respondents had conducted aspects of the proceedings,[83] Raphael FM awarded the applicant the amount of $10,000 as general damages. In arriving at that figure, his Honour had regard to a schedule of damages awarded during the period HREOC had its hearing function and to decisions of the FMC. His Honour also noted that he had borne in mind ‘what I regard to be a serious failure of the first respondent to put in place any appropriate machinery for dealing with this type of complaint’.[84]

(b) Grulke v KC Canvas Pty Ltd

In Grulke v KC Canvas Pty Ltd,[85] the precise basis of the claim is unclear from the decision, although Ryan J noted that he was satisfied that s 14 of the SDA had been contravened. His Honour awarded $7,000 for lost earnings and $3,000 as compensation for ‘psychological harm inflicted by the injury to the applicant’s feelings which occurred during the course of employment’.[86] That injury was said to be ‘substantially exacerbated by the termination of that employment in the circumstances that she recounted’[87] (the nature of those circumstances is unclear from the decision). Ryan J declined to order an apology in light of the fact that the respondent was a corporation and that a pecuniary award of damages had been made.

(c) Cooke v Plauen Holdings Pty Ltd

The applicant in Cooke v Plauen Holdings Pty Ltd[88] failed to make out a claim of sexual harassment. However, Driver FM was satisfied that the applicant had been discriminated against on the basis of her sex in contravention of s 14 of the SDA. His Honour held that although the applicant’s manager had treated all staff badly at times, he was ‘more intrusive in his management of female staff than in his management of male staff’.[89] Driver FM found the respondent employer vicariously liable for the conduct of the applicant’s manager on account of the fact that the steps taken to respond to the discriminatory conduct were ‘insufficient and ineffective’.[90] His Honour refused the applicant’s claim for economic loss. In assessing general damages at an amount of $750, his Honour said:

Although in recent times there has been a tendency for damages awards for non-economic loss to increase, most of the higher awards of damages in recent years have concerned very serious cases of sexual harassment. I have found that this is not a case of sexual harassment. The conduct complained of in this case was reprehensible in management terms but not otherwise. It was conduct that a reasonable person would have anticipated would be distressing to a young and inexperienced employee.[91]

(d) Song v Ainsworth Game Technology Pty Ltd

In Song v Ainsworth Game Technology Pty Ltd,[92] Raphael FM awarded the applicant $10,000 general damages in respect of a claim that the applicant’s dismissal involved discrimination on the ground of family responsibilities in contravention of s 14(3A) of the SDA. The applicant had sought to vary her employment to enable her to pick up her child from kindergarten. As a consequence the respondent reduced her position from full-time to part-time. In addition to the damages for the discriminatory conduct, Raphael FM awarded damages for loss of earnings up to the date of judgment. His Honour further ordered that the applicant be reinstated and made orders varying her employment agreement.

(e) Escobar v Rainbow Printing Pty Ltd (No 2)

Escobar v Rainbow Printing Pty Ltd (No 2)[93] (‘Escobar’) also involved a successful claim of discrimination on the ground of family responsibilities. In calculating the applicant’s economic loss, Driver FM first reduced the amount claimed to take into account the fact that, if the applicant had not been dismissed, she would have been available for work only two days per week.

His Honour further reduced the amount of damages claimed for economic loss having regard to the applicant’s duty to mitigate her loss. The applicant’s relationship with her partner broke down after her dismissal. From the time that this relationship ended, she was unable to work (save for limited casual work) by reason of her family responsibilities. His Honour said that the applicant’s inability to work from that time was not something for which the respondent should be held responsible.[94]

In relation to non-economic loss, his Honour said:

the applicant suffered hurt, humiliation and distress when she was terminated... In Hickie v Hunt & Hunt an amount of $25,000 was awarded for non economic loss. In Song v Ainsworth Game Technology the sum of $10,000 was awarded. Both of those cases involved a continuing employment relationship in unsatisfactory circumstances and the distress of the applicant was ongoing. In the present case the distress of the applicant was severe initially but would have resolved within a few months when the applicant reconciled herself to her present position. In addition, there was an intervening factor of the breakdown of the applicant’s personal relationship with her partner for which the respondent was not responsible. An award of damages for non-economic loss in the present case should be somewhat lower than that awarded in Hickie and in Song. The award made in Bogel v Metropolitan Health Services (2000) EOC Para 93-069 was in the sum of $2,500 which I find to be an appropriate award in the present circumstances.[95]

(f) Mayer v Australian Nuclear Science & Technology Organisation

In Mayer v Australian Nuclear Science & Technology Organisation[96] (‘Mayer’) the applicant was awarded damages in the sum of $39,294, including pre-judgment interest of $3,599, following a successful claim of pregnancy and sex discrimination. As in Escobar, Driver FM assessed the damages for economic loss on the basis that the applicant was only able to work 3 days a week. Entitlements for economic loss suffered in terms of lost salary, motor vehicle benefits and superannuation amounted to $30,695. The applicant received this compensation for the period when she was entitled to receive a full-time income and the three-month notice period. She did not receive any compensation for the period following as the respondent was entitled to terminate her employment from this date. In addition, his Honour found that the applicant did not make any serious efforts to find alternative employment, and therefore failed to mitigate any loss that she may have suffered after that date.

The respondent in Mayer also claimed that the applicant failed to mitigate her loss prior to that date by not making adequate enquiries about child care. Driver FM rejected this contention, stating:

It is true that Ms Mayer’s efforts to find child care were desultory and limited. She only looked for full-time places. However, Ms Mayer was proceeding (correctly) on the basis that her employer required her to work full-time, and she did not want to. Ms Mayer’s efforts to find child care are irrelevant to the issue of mitigation.[97]

The applicant was also awarded $5,000 for non-economic loss. Driver FM considered it appropriate that the award on this issue should be in excess of the $2,500 awarded in Escobar by reason of the fact that the applicant suffered depression requiring treatment. Driver FM found the applicant ‘was depressed and her state of mind would have been adversely affected by the respondent’s refusal of part time work’.[98] The respondent was ordered to deduct from the damages awarded and remit to the ATO an amount due for income tax calculated on the basis that the damages awarded included an assessable income in the sum of $13,642 and an eligible termination payment in the sum of $9,852.[99]

(g) Evans v National Crime Authority

At first instance in Evans v National Crime Authority[100] (‘Evans’) general damages in the sum of $25,000 plus $7,493.84 in interest were awarded following a finding of discrimination on the ground of family responsibilities. Raphael FM stated:

In anti-discrimination cases where no medical evidence is called or any serious medical sequelae alleged damages are given for hurt and humiliation. ...

In this case, medical evidence has been produced. The consensus of opinion is that the applicant suffered clinical depression as a result of the actions of the NCA which lasted at least up until the end of 2000 ... [T]he appropriate figure for general damages in this case should take into account the effect of the actions of the NCA upon the applicant. I note that it is over 10 years since Wilcox J awarded damages of $20,000 ... and that in Rugema v Gadston Pty Limited (1997), (unreported Commissioner Webster) the sum of $30,000.00 in non economic losses was awarded for major depressive disorder. It is my view that the sum of $25,000.00 is the appropriate award today for this applicant.[101]

Special damages for economic loss were also awarded in the sum of $21,994.73. This figure includes wage loss, loss of superannuation and interest on both of these amounts.

The National Crime Authority appealed against Raphael FM’s award of $25,000 for non-economic loss. [102] In upholding the appeal, Branson J held that the appropriate award for non-economic loss in the circumstances was $12,000.[103]

(h) Rispoli v Merck Sharpe & Dohme (Australia) Pty Ltd

In Rispoli v Merck Sharpe & Dohme (Australia) Pty Ltd,[104] the applicant was awarded $10,000 plus interest for non-economic loss after she was found to have been discriminated against on the ground of pregnancy. The first respondent was also ordered to provide the applicant with a personal apology. The non-economic loss suffered was the anger and upset the applicant felt when the position she returned to following her maternity leave was not what had been represented to her. She had suffered a loss of status. She felt she was not being given important work to do and was concerned she would suffer a loss of career opportunity. Driver FM stated:

Ms Rispoli should receive a substantial sum for her non-economic loss, given the period of approximately 16 months over which it was experienced, given that it was aggravated by the confirmation of Ms Rispoli’s loss of status in March 2000 and given the need to enforce respect for the public policy behind the SDA.[105]

The sum awarded for non-economic loss was only awarded for the period until the applicant’s voluntary resignation. Although the applicant was clearly distressed when she resigned from her employment, that was found to be ‘a problem of her own making’,[106] for which the respondent was not liable.

The applicant did not receive damages for economic loss. Although she was placed in a position not comparable in status to the position she held prior to taking maternity leave, she received the same remuneration and therefore suffered no loss during the period up to her resignation. In relation to the period after her resignation, his Honour declined to award damages for economic loss because ‘the chain of causation between the discrimination committed by the first respondent and Ms Rispoli’s loss of income following her resignation was broken by her own action’.[107] Damages and personal apologies were also sought against the second and third respondents, who were natural persons employed by the first respondent. These proceedings were dismissed on an issue of jurisdiction.

(i) Kelly v TPG Internet Pty Ltd

The applicant in Kelly v TPG Internet Pty Ltd[108] was awarded $7,500 in general damages on the grounds of pregnancy discrimination. No special damages for economic loss were awarded in this case as the respondent had discriminated against the applicant by offering her the position of customer service and billing manager on an acting basis, rather than in a permanent capacity following a period of maternity leave. As such, it was held that no loss of wages arose out of the discriminatory conduct.

(j) Gardner v All Australia Netball Association Ltd

In Gardner v All Australia Netball Association Ltd,[109] the respondent was found to have discriminated against the applicant by imposing an interim ban preventing pregnant women from playing in a netball tournament administered by the respondent. Raphael FM found this to be a breach of ss 7 and 22 of the SDA. The applicant was awarded the sum of $6,750 by way of agreed damages. This covered lost match payments, sponsorship and hurt and humiliation suffered by the applicant.

(k) Ho v Regulator Australia Pty Ltd

In Ho v Regulator Australia Pty Ltd,[110] Driver FM found that the respondent had discriminated against the applicant on the basis of her pregnancy in requiring her to attend a meeting with an independent witness to discuss her need for maternity leave. The applicant was awarded $1,000 in general damages. This amount was a sum reduced to take into account the fact that the extreme and unforeseeable reaction which the applicant had in fact experienced was caused by a personality disorder which was not known to the respondent.

Note, however, that this decision predates that of the Full Federal Court in South Pacific Resort Hotels Pty Ltd v Trainor,[111] discussed at 7.2.1(c) above, in which the Court rejected a similar approach advocated by the respondents.

(l) Howe v Qantas Airways Ltd

The respondent in Howe v Qantas Airways Ltd[112] was found to have unlawfully discriminated against the applicant on the basis of her pregnancy by refusing her access to her accumulated sick leave when she was unable to continue to work as a ‘long haul’ flight attendant by reason of her pregnancy. This resulted in the applicant taking unpaid leave. The applicant was awarded $3,000 in general damages for non-economic loss (distress)[113] and special damages of $24,753.85 calculated on the basis of the applicant’s salary for sick leave purposes for the period when she was entitled to be taking that leave.[114]

In reaching the figure for special damages, his Honour took into account, and offset the award by, an amount equal to the applicant’s salary for each day of sick leave accrued while on unpaid leave, stating that the applicant ‘was not entitled to have the benefit of the sick leave she accrued during [the] period of unpaid maternity leave as she is receiving damages to compensate her for not being granted sick leave for that period’.[115]

(m) Dare v Hurley

In Dare v Hurley,[116] Driver FM held that the respondent had dismissed the applicant after she informed him of her pregnancy. His Honour considered that the applicant should receive damages for the distress caused to her by the dismissal and special damages for her economic loss. Driver FM therefore awarded $3,000 in general damages and $9,005.51 in special damages for the applicant’s economic loss.

(n) Fenton v Hair & Beauty Gallery Pty Ltd

In Fenton v Hair & Beauty Gallery Pty Ltd,[117] Driver FM found that the applicant was discriminated against on the ground of pregnancy when she was sent home by her employer despite being ‘fit, ready and able to work’. She was awarded $838 for economic loss and $500 for non-economic loss on the basis that she ‘was annoyed by being sent home but suffered no real harm’.[118]

(o) Rankilor v Jerome Pty Ltd

In Rankilor v Jerome Pty Ltd,[119] Smith FM found that the applicant was discriminated against on the basis of her sex when an employee of the respondent employer had referred to the applicant’s gender in derogatory and insulting terms. She was awarded total compensation of $2,000 (inclusive of costs) on the basis that a significant part of her mental distress in attempting to resolve her complaint against the respondent could not be attributed to the employee’s remarks about her gender.

(p) Iliff v Sterling Commerce (Australia) Pty Ltd

In Iliff v Sterling Commerce (Australia) Pty Ltd[120] Burchardt FM held that the respondent company had discriminated against the applicant on the basis of her sex by withholding her redundancy payment subject to her signing a release. His Honour did not accept the additional claim of Ms Iliff that she had been dismissed from her position on the grounds of maternity leave or parenthood. Burchardt FM awarded Ms Iliff $22,211.45 plus interest[121] and less tax, which was the amount already owing to her. His Honour also imposed a $33,000 penalty on the respondent on account of the respondent’s breach of the return to work provisions in the Workplace Relations Act 1996 (Cth).

On appeal,[122] Gordon J dismissed the appeal and cross-appeal and left undisturbed the award of damages for unlawful discrimination and the penalty for breach of the Workplace Relations Act 1996 (Cth).

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7.2.4 Damages in sexual harassment cases

The following table gives an overview of damages awarded in sexual harassment cases under the SDA since the transfer of the hearing function to the FMC and the Federal Court on 13 April 2000. The reasoning underlying those awards is summarised below.

Table 3: Overview of damages awarded in sexual harassment cases under the SDA
Case
Damages awarded
(a)
Gilroy v Angelov (2000) 181 ALR 57
Total Damages: $24,000
$20,000 (non-economic loss)
$4,000 (interest)
(b)
Elliott v Nanda (2001) 111 FCR 240
Total Damages: $20,100
$15,000 (non-economic loss)
$100 (economic loss – cost of counseling)
$5,000 (aggravated damages)
(c)
Shiels v James [2000] FMCA 2
Total Damages: $17,000
$13,000 (non-economic loss)
$4,000 (economic loss)
(d)
Johanson v Blackledge (2001) 163 FLR 58
Total Damages: $6,500
$6,000 (non-economic loss)
$500 (economic loss – cost of counseling)
(e)
Horman v Distribution Group [2001] FMCA 52
$12,500 (non-economic loss - includes cost of medication)
(f)
Wattle v Kirkland (No 2) [2002] FMCA 135
Total Damages: $28,035
$7,600 (economic loss - reduced from $9,100 on appeal)
$15,000 (non-economic loss)
$5,435 (interest)
(g)
Aleksovski v Australia Asia Aerospace Pty Ltd [2002] FMCA 81
$7,500 (non-economic loss)
(h)
McAlister v SEQ Aboriginal Corporation [2002] FMCA 109
Total Damages: $5,100
$4,000 (non-economic loss)
$1,100 (economic loss)
(i)
Beamish v Zheng [2004] FMCA 60
$1,000 (non-economic loss)
(j)
Bishop v Takla [2004] FMCA 74
Total Damages: $24,386.40
$20,000 (non-economic loss)
$13,246.40 (economic loss: medical expenses and interest)
Note that the award of damages was reduced by an amount received in settlement against other respondents.
(k)
Hughes v Car Buyers Pty Ltd (2004) 210 ALR 645
Total damages: $24,623.50
$7,250 (non-economic loss – being $11,250 less $4,000 paid by a respondent against whom proceedings were discontinued)
$5,000 (aggravated damages)
$12,373.50 (economic loss - $12,086 for loss of income and $287.50 for expenses)
(l)
Trainor v South Pacific Resort Hotels Pty Ltd (2004) 186 FLR 132; upheld on appeal South Pacific Resort Hotels Pty Ltd v Trainor (2005) 144 FCR 402
Total Damages: $17,536.80
$6,564.65 (non-economic loss – being $5,000 plus $1.564.65 interest)
$1,907.50 (economic loss – medical expenses)
$6,564.65 (economic loss – being $5,000 plus $1.564.65 interest)
$2,500 (future loss of income)
(m)
Phillis v Mandic [2005] FMCA 330
$4,000 (non-economic loss)
(n)
Frith v The Exchange Hotel [2005] FMCA 402
Total Damages: $15,000
$10,000 (non-economic loss)
$5,000 (economic loss)
(o)
San v Dirluck Pty Ltd (2005) 222 ALR 91
$2,000 (non-economic loss)
(p)
Cross v Hughes [2006] FMCA 976
Total Damages: $11,322
$3,822 (economic loss)
$7,500 (non-economic loss - including aggravated damages)
(q)
Hewett v Davies [2006] FMCA 1678
Total Damages: $3,210
$210 (economic loss)
$3,000 (non-economic loss - including aggravated damages)
(r)
Lee v Smith [2007] FMCA 59
$100,000 (non-economic loss)
(s)
Lee v Smith (No 2) [2007] FMCA 1092.
Total Damages: $392,422.32 (approx) + interest
Interest on the above figure of $100,000 from 23 March 2007 at 10.25%
$232,163.22 (economic loss, plus interest on the amount of $53,572.72 at the rate of 5.125% from 5 December 2001 to 14 June 2007 and thereafter at 10.25%).
$35,000 (future loss of income)
$20,259.10 (economic loss – past medical expenses)
$5,000 (future medical expenses)

 

(a) Gilroy v Angelov

The applicant in Gilroy v Angelov[123] was dismissed from her employment. However, Wilcox J found that the dismissal was not causally connected to the acts of sexual harassment which his Honour had found to have taken place. Rather, his Honour found that the dismissal was caused by a misunderstanding and jealousy on the part of one of the principals of the respondent employer.

In those circumstances, there could be no award of damages for economic loss arising from the dismissal. Nevertheless, Wilcox J found that the conduct that constituted sexual harassment had serious consequences for the applicant. Those consequences were exacerbated by her employer’s failure to support her and by her abrupt and unfair dismissal. Wilcox J quoted and adopted his comments in Hall v Sheiban[124] in relation to the calculation of general damages for discrimination and awarded the applicant $20,000 plus interest under that head. Ms Gilroy had been unable to locate the fellow employee responsible for the sexual harassment, and was therefore unable to obtain a remedy directly against him.

(b) Elliott v Nanda

In Elliott v Nanda,[125] the first respondent, Dr Nanda, was found to have engaged in conduct which amounted to sexual harassment and discrimination on the basis of sex. The applicant had been employed by Dr Nanda as a receptionist at his medical practice. Moore J awarded $15,000 for general damages as well as $100 as compensation for counselling received by the applicant. Moore J further found that Dr Nanda was liable to pay the applicant the amount of $5,000 in aggravated damages to compensate her for the additional stress and mental anguish resulting from the considerable delay to the resolution of the complaint caused by him.[126]

The Commonwealth, as second respondent, was also found to be liable for the conduct of Dr Nanda under s 105 of the SDA. Moore J accordingly held that the amounts awarded (with the exception of the award of aggravated damages) could be recovered from either respondent, although the applicant could not be compensated twice. In arriving at that conclusion, his Honour rejected the Commonwealth’s submission to the effect that the applicant could only obtain relief for sexual harassment against Dr Nanda, stating:

This submission fails to give full effect to s.105 which results in a person to whom the section applies being treated as having done the unlawful act of another...the Court has power under s 46PO(4) to make such orders...as it thinks fit [including] an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent.[127]

His Honour permitted the parties to make further submissions addressing the form of orders to be made to give effect to his Honour’s findings. In his subsequent decision regarding that issue, Moore J held:

In my opinion both the respondent and the Commonwealth should be jointly ordered to pay the applicant $15,100 compensation on the basis that, if that liability is satisfied by one party, the other party effectively provide contribution. In the orders I use the words ‘joint and several’ to signify the nature of the liability to pay that I intend to create, by the orders, in exercise of the powers conferred by the legislation. I do not suggest that some common law principle, such as that which applies to joint tortfeasors, is to be applied in the present case with a particular result. As the respondent was the primary and immediate cause of the compensable loss and damage, he should bear the greater portion of the burden. I do not accept, however, that the Commonwealth should bear none of the burden. First, orders are not being made to punish either the respondent or the Commonwealth but rather are being made to compensate the applicant. Secondly, had the Commonwealth not engaged in conduct which I have found permitted the unlawful conduct of the respondent, that unlawful conduct would or may never have taken place. Accordingly I propose to order that, in the event that the respondent satisfies the liability to pay the $15,100, the Commonwealth is to contribute $5000. If the Commonwealth satisfies the liability then the respondent is to contribute $10,100. Plainly it is only the respondent who is liable to pay the $5000 aggravated damages.[128]

(c) Shiels v James

In Shiels v James[129] (‘Shiels’), Raphael FM awarded damages for economic and non-economic loss, after finding that the applicant had been subjected to behaviour including comments of a sexual nature, unwelcome touching and a ‘pattern of sexual pressure’.[130] As to the second head, his Honour noted that the sexual harassment cases heard by HREOC and the Federal Court during the time that HREOC had its hearing function indicated a range for general damages of between $7,500 and $20,000.[131] His Honour further noted that the higher awards had been made in cases involving more physical action[132] or more substantial physical sequelae.[133] Bearing these matters in mind, Raphael FM ordered the respondents to pay the applicant $13,000 for hurt and humiliation. His Honour also awarded special damages for economic loss in the amount of $4,000, which he described as a ‘cushion for loss of employability’.[134]

(d) Johanson v Blackledge

In Johanson v Blackledge,[135] Driver FM compared the hurt and distress suffered by Ms Johanson to that suffered by the applicant in Shiels. His Honour expressed the view that the sexual harassment in the case before him was substantially less serious than Shiels, involving a single event which occurred by accident with none of the consequences involved in Shiels. Accordingly, $6,000 was awarded for general damages, reduced by one third in recognition of a voluntary apology made by the respondents. His Honour also allowed the applicant $500 for special damages (being compensation for the cost of three counselling sessions).

(e) Horman v Distribution Group

The applicant in Horman v Distribution Group[136] led medical evidence concerning the effect of the conduct which was found to constitute sexual harassment and discrimination in contravention of s 14(2)(b) of the SDA. That evidence indicated that the applicant had suffered from anxiety and panic attacks and that, as a result of a heated argument the applicant had with another employee in September 1997, the applicant nearly suffered a miscarriage. Raphael FM found that the applicant’s symptoms fell within the ‘less serious band’, although he specifically noted that he was not underestimating the ‘concern that any pregnant woman in the workplace would feel at the possibility of a miscarriage brought about by actions in the workplace’.[137] His Honour awarded the amount of $12,500, which was a global figure to compensate the applicant for general non-economic loss and any special damage for the cost of medication.

(f) Wattle v Kirkland

In Wattle v Kirkland[138] (‘Wattle’) $15,000 was awarded to the applicant in damages for non-economic loss. In arriving at that figure, Raphael FM referred to the applicant’s evidence that she suffered hurt and humiliation, fear and concern, which manifested itself in panic attacks and exacerbation of her existing asthma. The applicant had been employed by the respondent as a taxi driver in Mudgee, during which time she was subjected to unwanted physical contact and remarks of a sexual nature. Despite difficulties with the evidence led by the applicant (who was self-represented), his Honour also awarded $9,100 to compensate the applicant for lost earnings for 26 weeks. Raphael FM found that the lack of evidence of a medical nature meant that he could not extend the period for loss of earnings beyond that time.

Raphael FM’s decision in Wattle was successfully appealed.[139] Although the calculation of damages was not the subject of the appeal, Dowsett J noted that ‘the basis of calculating the award may be suspect’.[140] The matter was remitted and heard by Driver FM, who awarded the same amount as Raphael FM for general damages.[141] However, the applicant claimed a lesser amount for economic loss than that awarded by Raphael FM, to take into account the payment of a disability support pension during the period for which she claimed lost income.[142]

(g) Aleksovski v Australia Asia Aerospace Pty Ltd

In Aleksovski v Australia Asia Aerospace Pty Ltd[143] Raphael FM stated that he was ‘prepared to accept that the applicant was seriously offended by the conduct of [the harasser]’, however ‘the applicant’s experiences were not as traumatic as those of many people who come before this court making allegations of sexual harassment’.[144] Ms Aleksovski had been subjected to repeated and forceful requests by a co-worker to spend some time alone together ‘at his place’. Raphael FM ordered that the respondent pay the applicant the sum of $7,500 by way of damages for non-economic loss. His Honour refused the applicant’s claim for damages in respect of economic loss incurred as a result of her dismissal. His Honour was not satisfied that there was a causal connection between the applicant’s dismissal and the conduct constituting sexual harassment.

(h) McAlister v SEQ Aboriginal Corporation

In McAlister v SEQ Aboriginal Corporation,[145] Rimmer FM referred to Raphael FM’s discussion in Shiels of the range for general damages for sexual harassment matters, stating:

In [Shiels] Raphael FM reviewed a number of cases and found that the current range for hurt and humiliation is between $7,500.00 and $20,000.00. He was, however, looking at cases involving overt and sustained sexual harassment. This case is distinguishable from those cases; it was a one-off request for sex by Mr Lamb in return for providing a single service. It was not repeated. Accordingly, the award for non-economic loss should be at least at the lower end of the scale.[146]

Rimmer FM noted that the applicant’s hurt and humiliation in the matter before her was initially substantial, but that there was no evidence before her to suggest when it was resolved. Her Honour further noted that the applicant’s evidence was that she had received counselling for a period of twelve months. In those circumstances, her Honour awarded the applicant $4,000 for general damages.

Her Honour also awarded the applicant damages to compensate her for loss she incurred in connection with relocating following the acts of sexual harassment. The amounts allowed under that head were $600 for the applicant’s moving costs and $500 to compensate the applicant for the loss of goods and furniture which the applicant disposed of or gave away prior to moving.

(i) Beamish v Zheng

In Beamish v Zheng,[147] the respondent was found to have engaged in a range of conduct towards the applicant, including sexual comments, attempting to touch the applicant’s breasts and offering the applicant $200 to have sex with him.

Driver FM noted the evidence of the applicant that the respondent’s conduct had caused her upset, ‘made her depressed and socially withdrawn and caused her physical illness, in particular vomiting’.[148] This was corroborated by the applicant’s mother. However, there was no medical evidence of any condition suffered by the applicant and Driver FM was not persuaded that she had suffered any ongoing psychological trauma. His Honour noted that her bouts of vomiting might have had a physical cause, rather than resulting from the respondent’s conduct. He awarded $1,000 in general damages for hurt and upset.

(j) Bishop v Takla

In Bishop v Takla,[149] the respondent was found to have engaged in a range of conduct which constituted sexual harassment, including sexual remarks and physical contact. Raphael FM found that the applicant was suffering from the effects of post traumatic stress disorder which affected her employability for a period and required ongoing medical assistance (although it was clear that her condition had improved since her initial depression).[150]

Raphael FM determined that $20,000 in damages for non-economic loss, as well as amounts for loss of income and medical expenses and interest, were appropriate – amounting to a nominal total of $33,246.40. The applicant’s complaint against the second and third respondents had been settled in mediation prior to the hearing. It was agreed between the parties that in the event of a finding against the first respondent, any award of damages should have deducted from it the amount the subject of the settlement, so that the applicant was not over compensated. Raphael FM had therefore been given a sealed envelope with the particulars of the settlement which he opened upon finding liability. His Honour accordingly deducted the sum of $8,860 (being that amount of the settlement which represented damages - a further $7,640 had also been paid by way of costs) from the total of the damages and interest, leaving an award of $24,386.40.

(k) Hughes v Car Buyers Pty Ltd

The respondents in Hughes v Car Buyers Pty Ltd[151] were found to have engaged in a range of conduct which constituted sexual harassment, including sexual remarks and physical contact. The first respondent, the employer company, was also found to have unlawfully discriminated against the applicant on the ground of sex. Walters FM found that the conduct of the respondents had a significant and negative impact on the applicant and that this impact continued until trial. Walters FM commented that ‘[t]here appears to be no doubt that [the applicant] has suffered depression (or a form of depression), anxiety, loss of motivation and loss of enjoyment of life’.[152] Walters FM also found that the applicant’s relationship with her partner had been adversely affected by the respondents’ conduct.

Walters FM held that the amount of $11,250 was the appropriate award for non-economic loss in the circumstances of the case. This amount was reduced by $4,000, being the monies paid by the third respondent to the applicant pursuant to a settlement agreement. The applicant had discontinued the proceedings in so far as they related to the third respondent prior to trial. Walters FM also awarded the applicant the amount of $12,373.50 for special damages, comprising $12,086 for loss of income and $287.50 for out of pocket expenses. The claim for loss of income arose as the applicant was unable to find employment for 12 weeks after she ceased working for the respondent company.

Walters FM also found that the prolongation of the proceedings and the additional mental distress caused to the applicant and the frustration, humiliation and anger that she felt as a result of her complaint being ignored warranted an award of aggravated damages in the sum of $5,000.[153]

(l) Trainor v South Pacific Resort Hotels Pty Ltd

Coker FM in Trainor v South Pacific Resort Hotels Pty Ltd[154] awarded $5,000 plus interest for non-economic loss after finding that the applicant had been subjected to unwelcome sexual advances and requests for sexual favours by a fellow employee. There were two incidents that took place within one week. On each occasion the perpetrator was present in the applicant’s room at the staff accommodation quarters of the hotel. His attendance was not invited or solicited by the applicant. The respondent employer was held vicariously liable for the employee’s acts of sexual harassment.

There was unchallenged medical evidence that the applicant suffered from a pre-existing psychiatric condition, albeit one that was exacerbated by the acts of sexual harassment. Coker FM found that the applicant experience