FEDERAL COURT OF AUSTRALIA

Kraus v Menzie [2012] FCAFC 144

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant pay the Respondents’ costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

introduction

1    This is an appeal from a judgment of this Court in an unfortunate case involving allegations of sexual harassment and unlawful discrimination in employment contrary to ss 28B and 14(2) of the Sex Discrimination Act 1984 (Cth) (“the Act”). The appellant, Ms Jade Kraus, is a young woman who worked as a receptionist for the second respondent, The Truck Factory Pty Ltd (“Truck Factory”) between 14 September 2009 and 27 April 2010. The first respondent, Mr Mark Menzie, is the “owner” of the Truck Factory.

2    At the trial the appellant gave evidence that from early in her employment she was sexually harassed by the first respondent by unwelcome advances and conduct, including inappropriate gifts of lingerie, sex toys and scanty clothing, and text and multimedia messages containing explicit and pornographic content. The alleged unwelcome conduct included the first respondent prevailing upon her to go on four overnight “business trips” in which he provided only one bedroom with a double bed, forcing her to share a bed with him on those trips, as well as other forms of sexual harassment on six other day trips which occurred between early October and mid December 2009. The appellant’s allegations included that the first respondent imposed on her by holding her, forcing her to sit on him, forcing her to pose for photos, and massaging and improperly touching her. The appellant stated that she reluctantly tolerated this conduct through fear of losing her job and, in effect, as a result of her own naivety.

3    The first respondent did not dispute, in large part, the conduct claimed by the appellant, although he rejected some aspects of it and he characterised the conduct quite differently. The gist of his defence was that his conduct was not sexual harassment or sexual discrimination because it was not unwelcome to the appellant. He alleged that the appellant was a willing participant in the conduct that she complained of in the proceeding, and that his conduct took place in the context of a personal relationship between them which extended to consensual sexual intercourse. He stated that he and the appellant had engaged in sexual intercourse on four occasions from early November 2009 through to mid December 2009, which indicated the depth and nature of their personal relationship. The appellant strongly denied that she had any sexual relationship at all with the first respondent.

4    Although the primary judge rejected some parts of the first respondent’s account, his Honour largely accepted his evidence that, after an initial period, he and the appellant had a relationship which extended to consensual sexual intercourse such that the conduct complained of was not unwelcome. His Honour rejected most of the serious allegations of sexual harassment and sexual discrimination made by the appellant, but he accepted some of her evidence and made declarations that the respondents had sexually harassed the appellant on several of the many occasions she alleged. The respondents were ordered to jointly pay damages of $12,000. However, his Honour’s findings as to the appellant’s credit, his rejection of most of the appellant’s claims and the consequence that she was awarded only 20% of the legal costs she had incurred, meant that the judgment was substantially adverse to her.

5    The appellant appeals to this Court on numerous grounds. However the two main appeal grounds advanced revolve around contentions that the primary judge erred:

(a)    by refusing to order that the first respondent particularise the dates, times and places of the four occasions of sexual intercourse alleged, which prejudiced the appellant in the hearing; and

(b)    by accepting the first respondent’s evidence that he and the appellant had sexual intercourse on four occasions when that evidence was not credible, particularly because on the evidence there was no available time at which the sexual intercourse could have taken place.

6    For the reasons we set out below we order that the appeal is dismissed and the appellant pay the respondents’ costs.

THE APPROACH TO THE STATUTORY QUESTIONS

7    There was no challenge to the approach taken by the primary judge as to the legal principles and it is convenient to set out that analysis, noting as we do that the main question raised on the appeal was the proper approach to the factual determination as to whether conduct of the first respondent was ‘unwelcome’. His Honour said (at [19] to [29]):

19.    The relevant provisions of the Sex Discrimination Act 1984 (Cth) (the SD Act) are s 5 defining “sexual discrimination”, s 14(2) and ss 28A and 28B. They relevantly provide:

5.    Sex discrimination

(1)    For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the sex of the aggrieved person if, by reason of:

(a)    the sex of the aggrieved person;

(b)    a characteristic that appertains generally to persons of the sex of the aggrieved person; or

(c)    a characteristic that is generally imputed to persons of the sex of the aggrieved person;

the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of the opposite sex.

(1A)    To avoid doubt, breastfeeding (including the act of expressing milk) is a characteristic that appertains generally to women.

(2)    For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the sex of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person.

(3)    This section has effect subject to sections 7B and 7D.

14    Discrimination in employment or in superannuation

(2)    It is unlawful for an employer to discriminate against an employee on the ground of the employee’s sex, marital status, pregnancy or potential pregnancy; breastfeeding or family responsibilities:

(a)    in the terms or conditions of employment the employer affords the employee;

...

(c)    by dismissing the employee; or

(d)    by subjecting the employee to any other detriment.

28A Meaning of sexual harassment

(1)    For the purposes of this Division, a person sexually harasses another person (the person harassed) if:

(a)    the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or

(b)    engages in other unwelcome conduct of a sexual nature in relation to the person harassed;

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.

(2)    In this section:

conduct of a sexual nature includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.

28B    Employment, partnerships etc.

(1)    It is unlawful for a person to sexually harass:

(a)    an employee of the person; or

(b)    a person who is seeking to become an employee of the person.

(2)    It is unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer.

...

(6)    It is unlawful for a workplace participant to sexually harass another workplace participant at a place that is a workplace of both of those persons.

(7)    In this section:

place includes a ship, aircraft or vehicle.

workplace means a place at which a workplace participant works or otherwise carries out functions in connection with being a workplace participant.

workplace participant means any of the following:

(a)    an employer or employee;

(b)    a commission agent or contract worker;

(c)    a partner in a partnership.

20.    I note that s 28A(1) has now been amended to substitute the word “might” for the word “would”: Sex and Age Discrimination Amendment Act 2011 (Cth). The findings of fact required in this matter do not depend on the different emphasis given by those words. The amendment does not apply to the present issues.

21.    The submissions indicate that the starting point is the definition of sexual harassment. There are relevantly two elements to that definition:

(1)    unwelcome sexual advances or unwelcome sexual conduct ... and

(2)    that a reasonable person in all the circumstances would have anticipated that the person harassed would be offended, humiliated or intimidated.

22.    It is common ground that the question of whether conduct is unwelcome is to be determined on a subjective basis − that is by reference to the state of mind of Ms Kraus. It is also common ground that the question whether conduct has the character referred to in s 28A(1), which is the test set out above at paragraph [21(2)], is to be determined on an objective basis: the perspective of a reasonable person in the role of a hypothetical observer (Leslie v Graham [2002] FCA 32 at [70] per Branson J).

23.    If sexual harassment is made out, the respondents did not contend that The Truck Company and Mr Menzie would not respectively have contravened s 28B(1) and (2) of the SD Act. Their defence was simply that sexual harassment was not established because Mr Menzie’s conduct towards Ms Kraus was not unwelcome, and because judged objectively, a reasonable hypothetical observer would not have anticipated that Ms Kraus would have been offended, humiliated or intimidated by it.

24.    The next step in Ms Kraus’ claim, if she established contraventions of s 28B, was to contend that the conduct also amounted to discrimination in employment, contrary to s 14(2)(a) and (d). The detriment and the less favourable terms or conditions of employment pleaded were said to be that Ms Kraus was forced to work in a “hostile, demeaning and oppressive work environment”. The oral submissions explained that that referred to Ms Kraus being isolated from any contact with Mr Menzie in the period from about early or mid-March 2010 (when Mr Menzie’s personal approaches to her came to an end) and being isolated from other employees.

25.    Section 14(2)(c) is also set out above, simply to note that Ms Kraus did not contend that she was dismissed from her employment by The Truck Company. However, it was contended on her behalf that the discrimination in employment was a cause of her employment coming to an end − she reacted to the foreshadowed meeting scheduled for 27 April 2010 by effectively abandoning her employment and this conduct was consistent with her stress and depressive condition said to be caused by the discrimination.

26.    If conduct on the part of Mr Menzie is found to contravene ss 14 or 28B of the SD Act, it will be necessary to consider the nature and extent of the consequences which followed. The contravention of either (or both) of those provisions entitles Ms Kraus to an award of compensatory damages: ss 3 and 46PO(4) of the Australian Human Rights Commission Act 1986 (Cth), as that would amount to unlawful discrimination.

27.    The alleged contravention of s 14(2) is not straightforward. Section 5 imposes the test that the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or not materially different, the discriminator treats or would treat a person of the opposite sex. The discriminator for the purposes of s 14(2) is The Truck Company as the employer, i.e. Mr Menzie’s conduct constituted unlawful discrimination by the employer. The “counterfactual” evaluation required by s 5 is unclear.

28.    Elliott v Nanda [2001] FCA 418; (2001) 111 FCR 240 addressed that question. Moore J at [111]-[128] decided that sexual harassment under ss 28A and 28B could amount to sex discrimination as informed by ss 5 and 14 of the SD Act. His Honour at [130] then concluded that the employer, by the harassing conduct, imposed a detriment within the meaning of s 14(2)(d) on the grounds of her sex. There was no apparent need to address the counterfactual prescribed in the definition of sex discrimination in s 5. However, that is a matter which Mr Menzie specifically raised here.

29.    The first step is to identify clearly how Ms Kraus was treated. The second step is to identify the comparable circumstances, for the purposes of seeing how a male person rather than a female person would have been treated. That presents some difficulty in the present matter. It is not clear whether it is necessary to assume sexual harassment of a male employee of similar nature to that asserted by Ms Kraus, and to then decide if the employer would have treated a male employee differently, or whether the fact that Mr Menzie’s conduct was directed towards Kraus because of her sex is sufficient. In this case, the contention was that the different treatment was in the isolating of Ms Kraus when the harassing conduct ceased, so the question may be whether a male victim of harassment would have been treated differently. For reasons which appear below, it is not necessary to determine how the “counterfactual” should be constructed and answered.

(Emphasis added)

The appeal

8    The Notice of Appeal sets out the grounds as follows:

1.    The Learned Trial Judge erred at the pre-trial directions stage in a case not to be conducted using witness statements in refusing an order that the respondent particularise the alleged “sexual relationship” asserted by the respondent.

2.    The Learned Trial Judge erred in finding that four acts of alleged sexual intercourse occurred by failing to assess the cross examination of the respondent as to the non availability of opportunity for sex in the times alleged by the respondent.

3.    The Learned Trial Judge erred in finding that the first act of alleged sexual intercourse occurred at a time prior to 19 November 2009.

4.    The Learned Trial Judge erred in finding against the appellant in respect of incidents when she asserted a version of events not challenged in cross examination.

5.    The Learned Trial Judge erred in failing to address the applicant’s case as to the credit of the respondent.

6.    The finding of sexual intercourse on four occasions was against the weight of the evidence.

7.    The Learned Trial Judge erred in fact and law in approaching the case on the basis that the issue came down to whether sex occurred.

8.    The Learned Trial Judge erred in fact in failing to address the submissions that (regardless of whether sex had occurred in 2009) by pressing the appellant to go to Melbourne in March 2010, the respondent engaged in sexual harassment.

9.    The Learned Trial Judge erred in fact and in law in approaching the determination of sexual harassment as a series of simple isolated incidences rather than as a course of conduct (resulting in a sexually hostile work environment).

10.    The Learned Trial Judge erred in failing to properly assess the psychiatric evidence.

11.    The Learned Trial Judge erred in fact and in law in failing to address the submission that sexual harassment which results in the victim succumbing does not cause such succumbing to expunge the effects of the prior harassment such that it ceases to be a causative factor in subsequent development of psychiatric conditions.

12.    The Learned Trial Judge erred in law in properly applying section 14 of the Sex Discrimination Act to the facts of the case.

We will deal with each of these grounds in turn.

Ground 1: Refusal of an application for particulars

9    The appellant contends that the primary judge erred at the pre-trial directions stage in refusing to order that the first respondent fully particularise the sexual relationship that he asserted had existed between him and the appellant, and that as a result she was prejudiced in the trial.

10    The appellant’s proceeding was filed on 20 December 2010 and her Statement of Facts, Issues and Contentions was filed on 23 February 2011. On 17 March 2011 the respondents filed their Statement of Facts, Issues and Contentions, which included a contention that the first respondent and the appellant had “a consensual sexual relationship”.

11    Mr Heywood-Smith QC, counsel for the appellant at trial and before us, says that in a directions hearing on 23 March 2011 the appellant’s representative made an application to the primary judge for an order requiring the provision of particulars of the dates, times and places of the occasions of sexual intercourse alleged. He says that this application was rejected by the primary judge, who required only that the respondents advise what was meant by the expression “consensual sexual relationship”. It is common ground that the respondents confirmed that they meant that the appellant and the first respondent had engaged in consensual sexual intercourse.

12    Mr Heywood-Smith argues that, in a case not being conducted using witness statements, the primary judge’s exercise of his discretion miscarried because he did not require the first respondent to provide particulars of the dates, times and places of the occasions of the sexual intercourse alleged. He contends that until the appellant had some indication as to where and when the alleged sexual intercourse had taken place it was difficult to determine what evidence might be available to gainsay the first respondent’s claim. For example, Mr Heywood-Smith complains that the appellant’s solicitors were denied the opportunity to obtain the first respondent’s records of text messages made by him and the records as to the dates and times of various jobs upon which he had worked around the times that he alleged sexual intercourse occurred. He submits that the rejection of the application for particulars deprived the appellant of the opportunity of proving through evidence in chief, or on cross-examination of the first respondent, that it was impossible for sexual intercourse to have occurred as alleged.

13    However, the appellant failed to establish that an application seeking particulars of the dates, times and places of the sexual intercourse alleged was in fact made. Mr Cole, counsel for the respondents at trial and before us, denies that any such application was ever made, contending that the only particulars sought by the appellant were as to the meaning of the respondents’ assertion of a “consensual sexual relationship” between the parties. He also says that the relevant interlocutory hearing was in fact on 1 February 2011 rather than on 23 March. Little turns on the date.

14    It is common ground that on 25 March 2011 the appellant’s solicitors wrote to the solicitors for the respondents requesting particulars of the dates and places at which it was alleged sexual intercourse had occurred. It is also common ground that no particulars were forthcoming. It is noteworthy though that there was no suggestion in the letter that the primary judge had already refused an application to provide the particulars sought.

15    No transcript of the interlocutory hearing of either 1 February 2011 or 23 March 2011 was before the Full Court. We were not informed whether this is because transcript of the relevant interlocutory hearing is not available or because it was not obtained by the parties. Given that the respondents made it clear in their written submissions that they did not accept that the appellant ever sought an order from the primary judge for particulars of the dates, times and places of the occasions of alleged sexual intercourse it is surprising that no transcript for the relevant occasion was before us. There was not even an affidavit as to the making of the application, for example by a lawyer present at the relevant interlocutory hearing, which might have provided some evidentiary foundation for the appellant’s contention.

16    The onus is on the appellant, and we are unable to be satisfied that the application asserted by the appellant was in fact made and rejected by the primary judge. This ground of appeal must fail.

17    For completeness, we also note that even if the appellant could establish that an interlocutory application for such particulars was made and rejected by the primary judge, we would be disinclined to allow the appeal on that basis. Any appellate intervention in a matter of practice and procedure such as this requires the exercise of particular caution: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177 per Gibbs CJ, Aickin, Wilson and Brennan JJ; Hogan v Australian Crime Commission (2010) 240 CLR 651 at [34] per French CJ, Gummow, Hayne, Heydon and Kiefel JJ. The circumstances of this case are such that appellate intervention is not appropriate.

18    In Adam P Brown the majority observed that the question of any injustice flowing from the interlocutory order appealed will generally be a relevant and necessary consideration as to whether appellate intervention is appropriate. In the present case it is difficult to see that any prejudice the appellant might be said to have suffered arose from any rejection of the application for particulars. We say this because, even if the application was made and rejected, there were many opportunities for the appellant to again raise the question of particulars. It was plainly open to the appellant to pursue the question of particulars prior to or at the commencement of the hearing by way of further application to the primary judge.

19    There were also opportunities to do so during the running of the lengthy trial. One clear example of an opportunity - not taken by the appellant - occurred at a point in the trial after the first respondent had identified the approximate dates and times together with the places, of the sexual intercourse alleged. At this time the first respondent’s telephone call records showing the dates, times, and location called from were in evidence, as were records from the appellant’s telephone showing the dates, times and content of the text messages between the parties. However, the text message records in evidence did not show where the party was at that time. During cross-examination of the first respondent on 30 August 2011 he was requested to produce his telephone account records which may show the locations from where he sent his text messages. Mr Heywood-Smith sought to use the records to establish that there was no opportunity for the parties to have had sexual intercourse on the dates, at the times or in the places alleged. The transcript is not clear, but it appears that the first respondent agreed to produce those records. He then sought to do so.

20    Part way through cross-examination of the first respondent the hearing was adjourned to 11 October 2011. In the intervening six weeks it transpired that the respondents did not have the text message records sought and that they could only be obtained from Telstra under subpoena. Their solicitors advised the solicitors for the appellant well before the resumed hearing date that they were unable to produce the records. Apparently because of some confusion on their part the appellant’s solicitors took no steps to subpoena the records themselves. As Mr Heywood-Smith accepted, during this interim period the appellant’s representatives had time to obtain these records by some method. Accordingly, if there had been any failure by his Honour to order particulars before the trial (and we are not satisfied that there was) that did not prevent the appellant from obtaining the records that she asserted were relevant to rebutting the respondents’ case. It follows that the asserted error by the primary judge, even if it had been established, did not cause the trial to miscarry.

21    It must be said though (as will be seen below) that we consider it unlikely that the first respondent’s text records to which we were taken at some length in the arguing of the appeal, if supplemented by any further information as to where he was when the text messages were sent, would have altered the evidentiary picture in any significant way. This ground of appeal must fail.

Grounds 2, 3 and 6: The findings that the parties had sexual intercourse

22    Grounds 2, 3 and 6 relate to the finding that the first respondent and the appellant had sexual intercourse on four occasions. The appellant contends that the primary judge erred:

(a)    by failing to properly assess the cross-examination of the first respondent as to the non-availability of the opportunity for sexual intercourse on the dates and times alleged;

(b)    in finding that the first act of sexual intercourse occurred prior to 19 November 2009; and

(c)    because the finding that sexual intercourse occurred on four occasions was against the weight of the evidence.

23    The first respondent gave evidence that he had sexual intercourse with the appellant:

(a)    at his home after work in early to mid November 2009 (before the 19th);

(b)    at his home after work in November 2009 about a week after the first occasion (but before the 27th of that month);

(c)    at the Crown Towers Hotel in Melbourne on the morning of Sunday, 29 November 2009; and

(d)    at the appellant’s home after work in mid December 2009 (after the 12th).

24    The appellant strenuously denied that she had ever had sexual intercourse with the first respondent. As we have already said, Mr Heywood-Smith sought to prove through cross examination of the first respondent, particularly by reference to the detailed telephone and text records in evidence, that there was no opportunity for them to have had sexual intercourse as alleged.

25    His Honour considered, and we agree, that there could be no nuance about whether or not the appellant and the first respondent engaged in sexual intercourse. Either it occurred or did not. Because of the direct conflict between the evidence of the appellant and the first respondent, and the absence of testimony from any other witness going directly to the question, the primary judge’s task in determining whether they had engaged in sexual intercourse on four occasions was difficult. In reaching a finding on this question his Honour correctly determined that he was required to make an overall assessment of the reliability of the evidence of the parties.

26    The appellant strongly argues that we must reach our own conclusions as to whose account should be preferred in relation to the central issue of whether or not sexual intercourse occurred as alleged. We were taken in detail to the evidence before the primary judge, and urged to hold that his Honour’s finding in this regard was wrong. Mr Heywoood-Smith referred in particular to Warren v Coombes (1979) 142 CLR 531 at 551 where Gibbs ACJ, Jacobs and Murphy JJ observed:

Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are indisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it.

While we have not had the opportunity to observe the witnesses over a six day period and listen to their evidence, Warren v Coombes makes clear that this does not mean that we should shrink from correcting the decision of the primary judge, if we consider it to be wrong.

27    However, the authorities set a high bar for an appellant in a case such as this where the evidence is diametrically opposed, and the primary judge was required to determine the question by reference to the parties’ comparative credibility. In Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 the majority observed, per Brennan, Gaudron and McHugh JJ:

More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact (Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 50 ALJR 842; Jones v Hyde (1989) 63 ALJR 349; Abalos v Australian Postal Commission (1990) 171 CLR 167). If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” (SS Hontestroom v SS Sagaporack [1927] AC 37 at 47) or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”( Brunskill at 844)

28    Later, in Fox v Percy (2003) 214 CLR 118 at 127-129 [26]-[31] a majority comprised of Gleeson CJ, Gummow and Kirby JJ reiterated that, ordinarily, a finding of fact by a trial judge, based on the credibility of a witness, should only be set aside upon appeal where incontrovertible facts or uncontested testimony demonstrate that the judge’s conclusions are erroneous, or where it is concluded that the decision that the trial was clearly improbable or contrary to compelling inferences in the case. Even so, as their Honours noted, an appeal court such as this must perform its appellate function of rehearing in accordance with the requirements of the applicable statute (here s 27 of the Federal Court of Australia Act 1976 (Cth)).

29    In this case the primary judge’s rejection of the appellant’s evidence that she did not engage in sexual intercourse with the first respondent is a quintessential credit finding. His Honour held at [36] that “generally speaking I would not accept much of Ms Kraus’ evidence on contentious issues” and he preferred the evidence of the first respondent on this central question. His Honour plainly made an assessment of the comparative credibility of the appellant and the first respondent having regard to the plausibility and probabilities of their evidence in light of the other evidence.

30    The appellant’s task before us is to establish that his Honour’s finding that the parties had engaged in sexual intercourse was inconsistent with facts incontrovertibly established, glaringly improbable or contrary to compelling inferences in the case or that there is some other basis on which that finding was erroneous. Mr Heywood-Smith seeks to demonstrate - by reference to the detailed telephone and text records in evidence - that it was impossible or at least highly improbable that there was any opportunity for the first respondent to have sexual intercourse with the appellant on the first, second and fourth of these occasions. (No such argument was made about the third occasion which was alleged to have occurred on Sunday, 29 November 2009, as they were staying together in a suite at a hotel.) The appellant argues that on the first, second and fourth occasions the telephone and text records indicate that the first respondent could not have been with her at the claimed location at the time claimed with sufficient time for sexual intercourse to occur. We were taken at length to the text and telephone records in an attempt to sustain this argument.

31    We do not accept this submission. Without now revisiting the minutiae of the telephone and text records, it is apparent that there were sufficient windows or opportunities for sexual intercourse to have happened on each of the three occasions in question. Although the opportunities were relatively confined, there is nothing in the records to which we were taken which precluded the possibility of sexual intercourse having occurred within the range of dates and times alleged. In short, the appellant failed to establish that there was no possibility of sexual intercourse occurring as alleged.

32    In our view the appellant also failed to establish that the primary judge’s finding was glaringly improbable, or even establish that it was against the weight of the evidence.

33    The appellant provided a detailed statement and chronology to the respondents in about June 2010 which she says, and we accept, put the first respondent on notice as to her claims. Mr Heywood-Smith argues that, despite the detail in her statement and the length of time before the first respondent eventually gave evidence, the first respondent was unable to offer a detailed or convincing account as to when the claimed sexual intercourse had occurred, and was unable to even specify a fixed date for three of the claimed occasions. He contends that various aspects of the first respondent’s account are improbable, lack credibility and should not be accepted.

34    In contrast Mr Heywood-Smith submits the appellant’s evidence was consistent and credible, and corroborated by her detailed statement prepared before she had legal advice. He points, amongst other things, to the fact that:

(a)    there is nothing in the appellant’s detailed statement to contradict her evidence on this issue;

(b)    despite the extensive number of text messages in evidence there is no indication in those messages of sexual intercourse ever having occurred;

(c)    despite numerous photographs in evidence there are none of the appellant in the nude or kissing the first respondent; and

(d)    on the first respondent’s own version he did not have sexual intercourse with the appellant after mid-December 2009.

He submits that the finding that sexual intercourse occurred is inconsistent or incongruous when viewed against the findings on various other issues, and that the appellant’s evidence should be preferred.

35    We do not accept this submission. His Honour sets out many findings which operate to support his rejection of the appellant’s account. These include the following:

(a)    Until shortly prior to the termination of employment the appellant made no report or complaint of inappropriate behaviour by the first respondent, even to her friends or her boyfriend, in circumstances where she might readily have done so;

(b)    On several identified occasions the appellant was able to refuse the first respondent’s advances, which indicated that she did not feel compelled to acquiesce to his requests or expectations to the extent that she had sought to convey in her evidence;

(c)    The numerous text messages between the parties did not suggest that the appellant was discomforted by the degree of intimacy offered by the first respondent. Her text messages showed that she was responsive, chatty, and informative and had no apparent desire to curb the level of communication or its content. The text messaging between them revealed a closer relationship than one between and employer and employee, or even between co-workers;

(d)    The appellant’s account of the trip to Melbourne to stay with the first respondent in Crown Towers Hotel from 27 to 29 November 2009 was implausible. On her evidence the first respondent had inappropriately booked a suite with only one bed, on the night of 27 November had entered a spa with her while nude and massaged her over her objection, and had then entered the shower while she was showering and soaped her over her objection. Her evidence was that she objected to and was revolted by this conduct, but she felt trapped and powerless. However, this was inconsistent with photographic and video evidence showing that she walked around their hotel suite in underwear and allowed the first respondent to take photographs and videos of her, including posing for the photographs, without any signs of distress or discomfort;

(e)    On 28 November 2009 (the day after conduct by the first respondent which on the appellant’s account was very inappropriate) she went shopping with him and he bought her a friendship ring costing $1,200. She expressed concerns about the ring because of its cost rather than because he wanted to purchase it for her. She had it resized and returned later that day to pick it up;

(f)    The appellant complained of the first respondent touching her even more inappropriately when they were in bed on the morning of 29 November 2009, saying that she reacted very negatively and felt violated. However, and inconsistently, she then went shopping with him and went on a horse and carriage ride. A text message she sent to him the following day, and the bantering tone to the text messages between them over the following few days, were also inconsistent with her claimed reaction to his conduct on the morning of 29 November and his conduct overall on the Melbourne trip. In these few days he also sent the appellant some extremely crude photographs by text and she did not object or comment on their crudeness;

(g)    The next weekend the appellant agreed to go on a day trip with the first respondent to Parrawirra Recreation Park and into the Barossa Resort and Winery, which was at least curious having regard to her claimed reaction to his inappropriate conduct on the morning of 29 November;

(h)    On 13 December 2009 the appellant texted the first respondent to advise that she had broken up with her boyfriend and asking to be picked up for work the following day. In response to a request that he might telephone her she responded “up to U Hun”;

(i)    The appellant went with the first respondent on a holiday to Tasmania in early January 2010. Although by then she had resumed her relationship with her boyfriend she falsely described it to the boyfriend as a work trip in which others from work were also participating; and

(j)    The appellant went with the first respondent on a trip to Sydney on 12 to 13 February 2010. Her text messages reveal that she knew that they would again be sleeping together in a shared hotel room, which they did. She again allowed the first respondent to take photographs of her, including one in which she poses seductively on the bed, which is inconsistent with her having been an unwilling participant in the conduct.

36    We do not accept that the appellant’s account in which she denies that she had sexual intercourse with the first respondent is more compelling and must be preferred to the account offered by the first respondent. In reaching a view as to which party’s evidence to prefer his Honour was faced with a difficult task. The authorities such as Devries and Fox v Percy are clear that, in the absence of material which powerfully indicates that a primary judge’s credit findings are wrong, the finding should not be interfered with on appeal. The evidence for the appellant fell well short of being a powerful indication. In our view there was a firm basis for his Honour’s findings.

37    The appellant also seeks to rely on the failure of the first respondent to produce telephone records showing the places from where he sent text messages. As we have already said, it appears that there was some confusion around this issue, but the appellant had the onus of proof. If the records were important it was for her solicitors to subpoena them. This is particularly so when the respondents’ solicitors had advised well before the resumption of the trial on 11 October 2011 that they would not be able to produce the records.

38    In relation to these grounds of appeal the appellant also complains of a breach of the rule in Browne v Dunn (1893) 6 R 67. That case was dealt with by Parker J in Williams v Dawson [2000] WASCA 205 at [31] where his Honour said the following:

In Browne v Dunn Lord Herschell LC said at 70, 71:

Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice or in the conduct of a case, but is essential to fair play and fair dealing with witnesses.

His Lordship continued later at 71:

All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had an opportunity of giving an explanation by reason of their having been no suggestion whatever in the course of the case that his story is not accepted.

This last observation is to be understood in the light of clear passages at 71 of the reasons that there is no obligation to raise by way of cross-examination such matters where the witness has had notice beforehand that there is an intention to impeach his credibility. In the same decision Lord Halsbury said at 76 - 77:

To my mind nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which they have given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity very often to defend their own character, and, not having given them such an opportunity, to ask the jury afterwards to disbelieve what they have said, although not one question has been directed either to their credit or to the accuracy of the facts they have deposed to.

39    In Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 at 16 Hunt J observed:

It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner’s intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination, the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn. That rule of practice follows from what I have always believed to be the rules of conduct which are essential to fair play at the trial and which are generally regarded as being established by the decision of the House of Lords in Browne v Dunn ...

He added at 26:

I remain of the opinion that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings.

40    The appellant says, and we accept, that the detail surrounding the circumstances in which the claimed sexual intercourse occurred such as the exact dates and times, the method of intercourse used and the rooms in which it occurred were not put to her. Largely the details did not emerge until the first respondent’s evidence, and even then the absence of some of the detail causes us some concern as to his credit. However, the rule in Browne v Dunn did not require the first respondent to put his allegations in chapter and verse to the appellant and she was not deprived of procedural fairness. The rule required the first respondent to put the appellant on notice as to the substance of his case - namely that he was in a relationship with her which included sexual intercourse. He did this from an early date in his written contentions. Some specific occasions were then put to her in cross examination. She strongly denied ever having had sexual intercourse with him and that was the contest between the parties.

41    The appellant also sought to rely on the rule in Jones v Dunkel (1959) 101 CLR 298 in relation to the failure of the first respondent to call his bookkeeper to give evidence.

42    The rule in Jones v Dunkel is often cited but frequently overstated or misstated.  The proper understanding to the limits and application of the well known passage in that case was reinforced this year by the High Court in Australian Securities and Investments Commission v Hellicar (2012) 86 ALJR 522 at 554-555 [165]-[167]; 286 ALR 501 at 543-544. French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ said:

The cogency of proof

...

165.    Disputed questions of fact must be decided by a court according to the evidence that the parties adduce, not according to some speculation about what other evidence might possibly have been led. Principles governing the onus and standard of proof must faithfully be applied. And there are cases where demonstration that other evidence could have been, but was not, called may properly be taken to account in determining whether a party has proved its case to the requisite standard.

    …

166.    Lord Mansfield's dictum in Blatch v Archer  that "[i]t is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted" is not to be understood as countenancing any departure from any of these rules. Indeed, in Blatch v Archer itself, Lord Mansfield concluded that the maxim was not engaged for "it would have been very improper to have called" the person whose account of events was not available to the court.

167.    This Court's decision in  Jones v Dunkel  is a particular and vivid example of the principles that govern how the demonstration that other evidence could have been called, but was not, may be used. The essential facts of the case, though well known, should be restated. The personal representative of a driver who had died in a collision with another vehicle brought an action for damages on her own behalf and on behalf of the deceased driver's dependants. The plaintiff's case depended upon demonstration that the other driver's negligence was a cause of the accident. The plaintiff sought to demonstrate negligence by having the tribunal of fact (in that case a jury) infer from facts concerning the road and the two vehicles involved that the collision had occurred when the defendant's vehicle was on the wrong side of the road. One of the defendants, the surviving driver, did not give evidence at the trial. The Court divided about whether the inference which the plaintiff sought to have the jury draw about where the collision occurred was an inference that was open on the evidence. But the Court held "that any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence".

…

43    In a separate judgment in the same decision, Heydon J put it this way (86 ALJR at 566 [232]; 286 ALR at 558-559):

232.    Secondly, the Court of Appeal accepted that its reasoning went "beyond Jones v Dunkel". Indeed, it agreed with the trial judge's conclusion that the rule in Jones v Dunkel did not apply. As the Court of Appeal said, two consequences can flow from the unexplained failure of a party to call a witness whom that party would be expected to call. One is that the trier of fact may infer that the evidence of the absent witness would not assist the case of that party. The other is that the trier of fact may draw an inference unfavourable to that party with greater confidence. But Jones v Dunkel does not enable the trier of fact to infer that the evidence of the absent witness would have been positively adverse to that party.

…

44    The first respondent’s evidence was that he and the appellant had an argument whilst on the trip to Tasmania in early January 2010 because she wanted to take over the second respondent’s bookkeeper’s job. The appellant says this is untrue and argues that the bookkeeper should have been called by the first respondent, being in his camp. We do not agree. The rule in Jones v Dunkel is discretionary, that is, a failure to call a witness who might corroborate an account may give rise to an inference that the witness would be unlikely to support the account. There was no cogent suggestion as to how the bookkeeper’s evidence, who was not present on the trip, could have assisted the primary judge in determining the reason for any fight. In any event the issue was far from significant in the primary judge’s decision.

45    We can discern no appealable error in this finding by the primary judge.

Ground 4: the rejection of the appellant’s account in respect of incidents that were not challenged in cross examination

46    Ground 4 relates to the primary judge’s rejection of the appellant’s account as to particular events when the appellant contends that account was not challenged in cross examination. The findings relied on by the appellant relate to the following four events:

(a)    a visit to the Mt Lofty car park in December 2009;

(b)    a trip to Parrawirra Recreation Park and Barossa Resort and Winery on 6 December 2009;

(c)    a trip to Mt Gambier on 21-22 January 2010; and

(d)    a refusal to go on a trip to the Melbourne Truck, Trailer and Equipment show in March 2010.

In doing so the appellant again seeks to rely on the rule in Browne v Dunn. The reliance is misplaced.

47    First, we note that none of these events involve the contested allegations of sexual intercourse. It was unnecessary for the first respondent to cross examine the appellant in detail as to these four incidents given that they were not central to the case, and given that his defence was that the parties were in an intimate personal relationship (which included sexual intercourse) in which conduct of this type could not be described as unwelcome.

48    Secondly, dealing with each of the events in turn, we can see no real absence of procedural fairness in the primary judge’s approach. His Honour accepted the first respondent’s evidence that he and the appellant went to the Mt Lofty car park in early December 2009 for a “kiss and a cuddle”. On the appellant’s account she had gone to the first respondent’s house to complete some bookwork, and over her objection had then been taken by him to the car park. She said that at the car park she sat with him in the back seat of a Mini convertible and completed the bookwork over three hours by the internal light of the car, not getting home until shortly before midnight.

49    While the first respondent’s allegation that they had in fact been kissing and cuddling was not put to the appellant in cross examination, it was put to her that the night-time visit to the Mt Lofty car park was in fact a personal trip and part of her personal relationship with the first respondent. She denied this. It was also put to her that the text messages showed her developing a story with the first respondent so that the other office workers would think she had been working when in fact she had not. She denied this too.

50    In our view the substance of the respondents’ case was put to the appellant, and there is no requirement under the rule in Browne v Dunn to do more than that. There is no unfairness in his Honour’s rejecting as inherently unlikely the appellant’s account of working on bookwork late at night in the back seat of a parked car at Mt Lofty car park.

51    Nor do we consider there is any absence of procedural fairness in his Honour’s finding as to the appellant’s trip with the first respondent to Parrawirra Recreation Park and Barossa Resort and Winery on Sunday, 6 December 2009. The appellant’s evidence was she had told the first respondent that she was going through a “rough patch” with her boyfriend, and he asked if he could take her out the following day. She said she gave way to his insistence, and the next day he picked her up and they went to the Parrawirra Recreation Park, then to the Barossa Resort and Winery, and then to Tanunda for lunch. On the way home late in the evening she said he pulled the car over and tried to kiss her. She said that she refused, and that the balance of the return trip to Adelaide was a tense one.

52    While the appellant was not cross-examined as to the detail of the events of that day, it was put to her in cross examination that going on the trip at all was inconsistent with her stated reaction to the first respondent’s behaviour on the Melbourne trip to Crown Towers Hotel, that her going on the trip had nothing to do with her keeping her job, and that it was a simple invitation for a social outing rather than anything to do with her work. It was put to her that when a fellow employee saw the two of them at the Tanunda hotel each of them had said “oops, we have just been busted” because their relationship was exposed. She rejected these suggestions.

53    The only significant finding in relation to this event is the rejection of the appellant’s evidence that she only wanted a professional relationship with the first respondent. His Honour was not convinced of this and considered it inconsistent with her going out with him on that date at all. The substance of this claim was expressly put to her, and there is no unfairness in that regard.

54    Next, the appellant complains about the primary judge’s findings in relation to a trip with the first respondent to Mt Gambier on 21 to 22 January 2010 to pick up a truck which had been repaired. Her evidence was that she was very reluctant to go given her previous experiences, had initially refused to go, and had even suggested that she bring her boyfriend with her. She said that she eventually agreed to go on the trip because she needed the extra money. She complained that the first respondent had again booked a single room in a hotel with only one bed, that they argued about where he would sleep, but eventually she gave in and they had shared a bed again.

55    While the appellant was not cross-examined about the detail of the trip, it was put to her that her agreement to go on the trip at all was inconsistent with her evidence about her upset with an earlier trip to Mt Gambier with him when she had been forced to stay in the same bed. It was put to her that she had “made up” with him and was “getting back” with him again, intimating that she knew that they would be again sharing a bed. His Honour reviewed the contemporaneous text messages put into evidence by the appellant, and considered that they did not indicate that she wanted a separate room or that she wanted to distance herself from him. The matters underlying this finding had been put to her in the suggestion that she had “made up” with him and was resuming an intimate personal relationship. We can see no unfairness in his Honour reaching the finding that the appellant anticipated that she would share a bed with the first respondent on the trip.

56    Finally the appellant complains that although it was not put to her in cross examination, his Honour accepted the first respondent’s account as to why she had not gone to the Melbourne Truck, Trailer and Equipment show in March 2010. Her evidence was that the first respondent again expected her to share a room with him at a hotel, and put substantial pressure on her in order to get her to agree. She said that ultimately she refused to go on that trip because she would not share a room with him.

57    The first respondent disputed that the appellant had specifically insisted on having a sleeping arrangement separate from others and separate from him. He said that she did not go on the trip because of her mother’s illness and because accommodation difficulties meant he could not guarantee her a separate room. It is correct, as the appellant contends, that this proposition was not put to her in cross examination and she was also not cross-examined about the pressure she claimed that she was put under to again share a room with him. However, his Honour’s finding as to the real reason she did not attend the trip was largely based on her own text message which she had put into evidence. In this text message she referred to having seen her mother who was suffering from a terminal illness and said:

I don’t think I can in good conscience leave her while she is in this state. If something was to happen I would never forgive myself. I don’t think it’s possible for me to go. I’m sorry.

58    It is hard to see any unfairness to the appellant in his Honour’s reliance on this text message even though she was not cross-examined about it. There can be no suggestion that her advisers were taken by surprise by the suggestion that the reason she had not gone the trip was other than that put by her. In any event, it is clear that his Honour’s finding about this trip and the appellant’s refusal are far from central to the result in the case.

59    This ground of appeal too must fail.

Ground 5: failure to address the appellant’s case as to the credit of the respondent

60    Under this ground the appellant submits that the primary judge erred in failing to address the appellant’s case as to the credit of the first respondent. She contends that the first respondent conducted his case so as to raise serious questions as to his credit, and argues his evidence was not plausible.

61    Contrary to this submission, it is clear that his Honour carefully considered the first respondent’s credibility. He took into account some features of his evidence that he considered unsatisfactory and rejected those parts, and accepted those parts of his evidence where he considered it satisfactory or more credible than the appellant’s. This is clear from the judgment at [40] where his Honour notes, “[i]n weighing the competing evidence, I have also taken into account some unsatisfactory features of Mr Menzie’s evidence”, and then proceeded to set out some of those features. These include that his Honour rejected the first respondent’s evidence that he did not seek to develop a personal relationship with the appellant until some weeks into her employment, that he was simply acting as a good employer during those early stages, and that he was not “coming on to her” until she ceased her relationship with her boyfriend. His Honour’s rejection of the first respondent’s credit on some issues is also clear with regard to the several incidents which his Honour adjudged constituted sexual harassment.

62    At [40] of the judgment his Honour also noted the first respondent’s failure to particularise the allegation of sexual intercourse before the hearing, the failure to put these occasions in detail to the appellant during cross examination, and his difficulty in identifying with precision the dates upon which each occasion of sexual intercourse occurred (although not as to the detail of the events themselves). His Honour observed that this had caused him “anxious consideration about the reliability of [the first respondent’s] evidence.” This too, taken in the context of the analysis, is a strong indication of the careful consideration his Honour gave to this question.

63    In any event, as we set out earlier, the authorities are clear that we should not overturn his Honour’s findings as to the first respondent’s credit unless incontrovertible facts or uncontested testimony demonstrate that his conclusions are erroneous, or unless we conclude that the decision at the trial was glaringly improbable or contrary to compelling inferences in the case. We have already set our view in this regard, and also noted that his Honour was entitled to reach the view that he did as to the comparative credibility of the parties.

64    Ground 4 must fail.

Grounds 7, 8, 9 and 11:

65    Grounds 7, 8, 9 and 11 are grouped together by the appellant in written submissions, but it is difficult to discern a substantial connection between them. None of these grounds were given any substantial focus in the hearing before us.

66    Under Ground 7 the appellant contends that the primary judge erred in approaching the case on the basis that the issue came down to whether sexual intercourse between the parties had occurred. We do not accept that the primary judge took this path. His Honour had the unenviable task of determining which of the parties was to be believed on their competing version of events, especially on the topic of the appellant’s willingness to be involved in the specific conduct alleged. There was a direct conflict of evidence about one important aspect of the parties’ relationship, that is whether they were having sexual intercourse together.

67    We see no error in his Honour’s view that a finding that he that believed one party over the other on that significant issue operated to inform his overall assessment of the comparative reliability of the parties’ evidence. However, his Honour’s judgment did not turn entirely on the issue as to whether sexual intercourse had occurred as alleged. His Honour set out numerous reasons for rejecting the appellant’s account on most contentious issues, some of which we have set out above at [35].

68    Moreover, the issue of whether consensual sexual intercourse occurred presented a means of characterising most of the first respondent’s conduct complained of. If the primary judge had rejected the first respondent’s evidence on this issue, then his behaviour could have been seen in a very different light from his Honour’s findings. On the other hand, once the primary judge was satisfied that consensual sexual intercourse occurred between the parties during the subject period it was open to him to reject those parts of the appellant’s case that he did. Behaviour that is natural or acceptable between parties in a consensual sexual relationship, can easily be unwelcome and harassing where the parties are not in such a relationship. The primary judge was required to ascertain the real nature of the relationship between the appellant and the first respondent. A key to arriving at a finding on that issue was the resolution of the competing versions of whether or not the relationship involved consensual sexual intercourse. His Honour’s approach to this issue was open and accorded with good common sense.

69    Under Ground 8 the appellant contends that the primary judge erred in failing to address the submission that (regardless of whether sexual intercourse occurred in 2009) by pressing the appellant to go to Melbourne in March 2010 the first respondent had engaged in sexual harassment. The appellant argues that by March 2010 there had been no sexual relations for three months and that by acknowledging that he was pressing her to go to Melbourne, knowing that she would have to share a bed, the first respondent was effectively acknowledging sexual harassment.

70    We do not consider it is now appropriate for the appellant to seek to break down the intimate personal relationship found to have existed between her and the first respondent into a series of individual incidents or events. An overall view of the relationship must be taken. In the context of their relationship, extending as his Honour found to occasional sexual intercourse, we can see no error in his Honour’s conclusion that any insistence by the first respondent on her attending that that trip was not unwelcome conduct of a sexual nature. It is also relevant to recall that his Honour found that just a few weeks earlier on 12 to 13 February 2010 the appellant had gone away on a trip with the first respondent to stay at the Hilton Hotel in Sydney, where again they had slept in the one bed, where again they had shared a spa, and where again she had allowed the first respondent to take photographs of her including posing seductively on the bed.

71    Further, as is apparent from [57] above, the primary judge implicitly rejected the submission that by pressing the appellant to go to Melbourne the first respondent had engaged in sexual harassment. His Honour rejected the appellant’s account that she refused to go to Melbourne on this occasion because of unwelcome demands by the first respondent that she again share a bed with him. His Honour found that the real reason that the appellant did not go to Melbourne was her mother’s illness.

72    Under Ground 9 the appellant submits that the primary judge erred in approaching the case as a series of isolated incidents rather than as a course of conduct resulting in a sexually hostile work environment. This argument was not further developed. We do not accept that his Honour approached the case in this way.

73    Under Ground 11 the appellant contends that the primary judge erred in failing to address the submission that even if the appellant succumbed to the sexual harassment and had sexual intercourse with the first respondent (which is denied) the effects of the earlier harassment continued and it was a causative factor in her subsequent development of a psychiatric condition.

74    The contention that his Honour did not address this submission does not withstand examination. His Honour expressly did so at [133] of his judgment when discussing the appellant’s decision not to return to work on 27 April 2010. He rejected the contention that the effects of the earlier harassment were continuing at that time, stating:

…in the light of my findings about the limited extent to which Ms Kraus was exposed to sexual harassment in the course of her employment… I do not attribute her decision to not return to work anyway to being a consequence of the sexual harassment which I have found to have been established.

75    This passage also illustrates the error in the appellant’s contention that his Honour did not address the question of a causal connection between the termination of her employment and the sexual harassment and/or discrimination. His Honour did consider that question, and expressly concluded that her decision not to return to work was unrelated to any sexual harassment or discrimination. The primary judge found that the appellant abandoned her employment under the pressure of her mother’s deteriorating health and the circumstances she perceived she was in where she feared that she would lose her job. That perception was based on the first respondent’s avoidance of significant contact with her from early March 2010 and his fixing a meeting for 27 April 2010 to discuss her performance at work. However, the primary judge found that the first respondent simply had stepped back from the personal relationship and gave effect to the appellant’s wish not to have such a relationship. His Honour also noted, but made no finding, that the first respondent gave evidence that he did not intend to dismiss the appellant but wished to raise some concerns with her at the meeting fixed for 27 April 2010.

76    The primary judge also addressed the contention that the earlier harassment caused or contributed to the appellant’s psychiatric condition at [13] to [15] of the judgment. His Honour expressly rejected any connection between the sexual harassment and the psychiatric condition, instead finding that the alternative hypothesis just set out was equally available.

Ground 10: Failure to properly assess the psychiatric evidence

77    Under this ground the appellant contends that the primary judge erred in failing to properly assess the psychiatric evidence. Mr Heywood-Smith argues that the appellant was diagnosed by three medical practitioners with a psychological condition variously described as post-traumatic stress, anxiety, adjustment disorder and depression. Each of the medical practitioners related her condition to sexual harassment and discrimination by the respondents. He submits that this evidence was dismissed without warrant by his Honour.

78    We do not accept that the primary judge failed to properly assess the medical evidence. We can see no error in his Honour’s conclusion that the medical evidence could play no real role in supporting the appellant’s claim that her medical condition was caused, or contributed to, by any sexual harassment or sexual discrimination at work. This must be so when each of the medical practitioners based their opinions on a history supplied by the appellant, including her detailed written statement. Mr Heywood-Smith concedes that the medical practitioners assumed the history was accurate.

79    The effect of his Honour’s findings is that the history given by the appellant as to her relationship with the first respondent was false, as she did not tell the medical practitioners that in the period that she claimed she was being harassed she had in fact been in a consensual sexual relationship with the first respondent. The medical evaluations as to the connection between her condition and the sexual harassment she alleged were made on the basis of this false history. In those circumstances his Honour cannot be criticised for treating these evaluations as being of no assistance to him.

80    His Honour also considered that an alternative hypothesis - that the appellant’s psychological condition was caused by the stress and anxiety from her mother’s terminal illness coupled with the fear or perception that she was about to lose her job - was equally available. His Honour noted that in the course of final submissions Mr Heywood-Smith accepted that her psychological condition could be explained upon that basis. There can be no doubt that his Honour was entitled to rely upon this concession by senior counsel, and the contention that this is not so must be rejected.

Ground 12: failure to properly apply section 14 of the Act

81    Under this ground of appeal the appellant contends that the primary judge erred in failing to find that the first respondent’s conduct which constituted sexual harassment also constituted sexual discrimination by the second respondent under s 14(2) of the Act. This provision prohibits sex discrimination in employment including by subjecting the employee to any detriment.

82    His Honour found at [136] of the judgment:

I do not find that the conduct identified as sexual harassment amounted to discrimination in employment in contravention of s 14(2) of the SD Act. That is simply because I do not think that, as a result of that conduct, The Truck Company or Mr Menzie discriminated against Ms Kraus by subjecting her to any detriment in her employment or by the terms or conditions of employment which were afforded to her. They were instances of sexual harassment which did not affect her employment in any respect. Specifically, I do not accept that those instances of sexual harassment had any role to play in the conversation which Mr Menzie had with Ms Kraus on 23 April 2010, or of any assessment of the quality of the work in the weeks preceding that period of time. She was able to perform her normal duties throughout the whole of the time of her employment, and her employment came to an end from circumstances which were unrelated to that identified conduct. Consequently, I do not need to address whether she was treated less favourably than, in circumstances that are the same or not materially different, The Truck Company or Mr Menzie treated or would have treated a male person. That issue does not arise.

83    The appellant was successful in her allegations regarding the five occasions which his Honour found constituted sexual harassment contrary to s 28B of the Act (one of which occasions involved four separate text messages). She was awarded damages in relation to those occasions.

84    His Honour found that there was no detriment suffered by the appellant in her employment on these occasions and we can see no reason to disturb that finding. In particular his Honour found that the evidence did not support a finding that she was precluded from normal work communications or activities, and that her leaving her employment had nothing to do with the harassment found. Central to his Honour’s decision is his acceptance that the appellant was in a personal and intimate relationship with the first respondent, and for the most part a willing participant in the conduct later complained of. In effect, he found that the conduct did not create the hostile, demeaning and oppressive workplace environment that is now contended to have existed, and we can see no basis to overturn that finding. The appellant’s contention that the detriment under s 14(2) is that she was forced to work in such an environment is not made out.

Conclusion

85    For these reasons, the appeal should be dismissed and the appellant should pay the respondents’ costs.

Associate:

Dated:    12 October 2012