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As far from a Jane Austen novel as it is possible to be

On 24 July 2020, the Full Court of the Federal Court of Australia handed down the decision of Hughes trading as Beesley and Hughes Lawyers v Hill [2020] FCAFC 126. The decision involved an appeal from a judgment of the Federal Circuit Court that the Appellant had sexually harassed the Respondent.

The Appellant was a legal practitioner and principal of a small law firm in Byron Bay. The Respondent was also a legal practitioner employed by the Appellant as a paralegal.

The Respondent made a complaint to the Australian Human Rights Commission (‘the Commission’) alleging sexual harassment by the Appellant.  The Commission was unable to resolve the complaint and the Respondent proceeded to commence proceedings in the Federal Circuit Court of Australia.

The Respondent’s allegations of sexual harassment were that the Appellant:

  1. Bombarded the Respondent with emails professing his love for her and proposing a romantic relationship.
  2. Entered the Respondent’s bedroom when travelling for work and demanded a hug from her while wearing only his underwear. The next morning, the Appellant was waiting for the Respondent in her bedroom when she came out of the shower dressed only in a towel.
  3. Physically prevented the Respondent from leaving her own office unless she first gave him a hug.
  4. Sent the Respondent emails telling her that her work output was not good enough since they were not lovers.

In the Federal Circuit Court proceedings, the Respondent presented unopposed medical evidence that she had been psychologically traumatised by the Appellant’s sexual harassment. During the trial, the Appellant used confidential and personal information that he had obtained by acting for the Respondent in a mediation between her and her former husband. This included information about the Respondent’s relationship with her former husband and other men after separation and information about Apprehended Violence Orders.

The trial judge found that the conduct of the Appellant was outrageous and that sexual harassment was established. Orders were made for general damages in the amount of $120,000.00 and aggravated damages in the amount of $50,000.00.

The Appellant appealed the trial judge’s decision to the Full Court of the Federal Court of Australia on three grounds:

  1. The evidence did not support the conclusion that the Appellant had sexually harassed the Respondent;
  2. The award of $120,000.00 was manifestly excessive; and
  3. There was no basis for the award of aggravated damages.

Sexual Harassment

The Appellant submitted that his conduct could not be characterised as “sexual” for the purpose of the Sex Discrimination Act 1984 (“the Act”). Rather, he submitted that his conduct was romantic in nature akin to that of Mr Darcy in Jane Austen’s Pride and Prejudice.

The Full Court sets out three steps that need to be taken to determine whether a person has been sexually harassed in accordance with section 28A of the Act. The three steps are summarised below.

First, the Court must determine whether there was a sexual advance, a request for sexual favours or other conduct of a sexual nature in accordance with the definition in section 28A(2) of the Act.

Secondly, if an identified form of sexual conduct is established, the Court must then consider whether the conduct was “unwelcome”. This is a question of fact which is subjective and turns only on the allegedly harassed person’s attitude to the conduct at the time it occurred.

Thirdly, once it has been established that there was conduct of a sexual nature towards another and that the conduct was unwelcome, the Court must consider whether a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person allegedly harassed would be offended, humiliated or intimidated by the conduct. “Circumstances” are broadly defined in section 28A(1A) of the Act and include the relationship between the harasser and the harassed.

Unsurprisingly, the Court rejected the Appellant’s submission that there was no sexual harassment and noted that “the facts of this case are about as far from a Jane Austen novel as it is possible to be”.

General Damages

The Full Court considered that the order for general damages in the amount of $120,000.00 was entirely within the range of available awards for general damages given the seriousness of the allegations and where Appellant’s repeated and self-indulgent actions caused actual psychological harm to the Respondent. 

The Court confirmed that the decision in Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82 affected a substantial increase in the general damage which could be awarded in a case of sexual harassment. It was acknowledged that there are now many cases where damages for sexual harassment have been awarded in the amount $100,000.00 or thereabouts.

In upholding the trial judge’s award of $120,000.00 for general damages, the Full Court stated that:

“Society affords to the members of the legal profession privileges. These consist in the exercise of powers not possessed by the community at large: the power to transact, to act in litigation and to argue cases. The possession of these privileges is apt to confer status on those that hold them. But the status is not held for themselves but for the community which they serve. The use of this status for tawdry personal ends is an abuse of it. In this case, the trial judge was right to measure in general damages the power differential that lay between the Appellant and the Respondent not only by the fact that he was her employer but by the fact of his status as a solicitor”.

Aggravated Damages

The Appellant also challenged the order by the trial judge for aggravated damages in the amount of $50,000.00.

The trial judge’s decision to make an order for aggravated damages was based on the fact that the Appellant made threats to the Respondent if she were to make a complaint of sexual harassment against him and due to the manner in which he conducted himself during the trial.

The Full Court found that the tri­al judge was cor­rect to con­clude that an award of aggra­vat­ed dam­ages was appro­pri­ate. The full court stated that:

“To have suf­fered the Appellant’s sex­u­al harass­ment in the first instance was psy­cho­log­i­cal­ly dam­ag­ing to the Respon­dent. To deal there­after with his men­ac­ing behav­iour, as her employ­er, must have been a ter­ri­ble expe­ri­ence for a woman in her posi­tion. To have suf­fered the final indig­ni­ty of watch­ing the Appel­lant divulge her con­fi­den­tial infor­ma­tion in his own defence, in gross dere­lic­tion of his pro­fes­sion­al duty, can only have made her realise that she was in the ring with a dis­turbed, self-cen­tred and ven­omous man. He had threat­ened that he knew how to ​‘fight the good fight’ and he car­ried that threat out even to the extent of con­duct which must sure­ly soon end, if it has not already end­ed, his career as a lawyer.”

The Full Court emphatically dismissed the appeal and went so far as to say that some of the submissions were insulting and should not have been brought.

This case is an important reminder to all employers to take proactive steps to prevent and deal with sexual harassment in the workplace. The case provides useful guidance to employers investigating allegations of sexual harassment by clearly setting out the steps that a Court will take to determine whether an employee has been sexually harassed. This is particularly pertinent for legal practices as Kate Jenkins, Sex Discrimination Commissioner, has recently reported that since June, legal workplaces have reported more people coming forward saying they have been sexually harassed.

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