FEDERAL COURT OF AUSTRALIA
FEDERAL COURT OF AUSTRALIA
Vergara v Ewin  FCAFC 100
1 In paragraph 18 of the Honourable Justice White’s Reasons for Judgment the words “the appellant had been substantially naked” should read “the respondent had been substantially naked”.
I certify that the preceding one (1) numbered paragraph is a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice White.
Dated: 14 November 2014
IN THE FEDERAL COURT OF AUSTRALIA
DATE OF ORDER:
THE COURT ORDERS THAT:
2. The appellant pay the respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
VICTORIA DISTRICT REGISTRY
VID 45 of 2014
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
NORTH, PAGONE AND WHITE JJ
12 AUgust 2014
REASONS FOR JUDGMENT
1 A Judge found that in four separate incidents in May 2009 the appellant contravened s 28B(6) of the Sex Discrimination Act 1984 (Cth) (the SD Act) by sexually harassing the respondent: Ewin v Vergara (No 3)  FCA 1311. In the first three incidents, the harassment comprised, in the main, spoken words. In the fourth incident, it comprised sexual intercourse, kissing, and touching and stroking of the respondent’s body, including her breasts and genitalia. The Judge made declarations which reflected these findings.
2 The Judge assessed the compensation to which the respondent was entitled for the loss and damage caused by the conduct at $476,163 together with interest but, after making allowance for other recoveries by the respondent, entered judgment against the appellant for $210,563 inclusive of interest.
3 The appellant appeals against aspects of the findings of sexual harassment and against the assessment of damages.
4 In May 2009, the respondent was 36 years old and recently married. She is a Chartered Accountant and was employed by Living and Leisure Australia Ltd (LLA) as its Group Financial Controller.
5 The appellant was also working at LLA as an accountant. However, he was employed by Robert Walters Pty Ltd (RWA), a recruitment and labour hire firm. He worked at LLA pursuant to a contract between RWA and LLA. In May 2009, the appellant was 40 years old and married with three children.
6 The office of LLA was at Level 13, 474 Flinders Street, Melbourne. Both the appellant and the respondent worked in that office.
7 Section 28B of the SD Act proscribes sexual harassment in a variety of employment and work contexts. As the appellant and the respondent were employees of different entities, s 28B(6) and (7) were pertinent in this case. As in force in May 2009, s 28(6) and (7) provided:
(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.
8 It was common ground at trial and on the appeal that the appellant was a “contract worker” as defined in s 4(1) of the SD Act and therefore within par (b) of the definition of “workplace participant”, and that the respondent was an “employee” to whom par (a) of that definition referred.
9 Sexual harassment, for the purposes of s 28B, is defined in s 28A of the SD Act. Section 28A provides:
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.
The contraventions of s 28B(6)
10 In broad terms, the conduct of the appellant which the Judge found to contravene s 28B(6) was as follows:
(a) On Wednesday, 13 May 2009, at the end of the working day, the appellant turned off the lights in the office which he shared with the respondent, walked behind her, and tried in the dark to touch her hand so as to turn her computer off, stating that she should finish work. He told the respondent that he would turn the light back on only if she agreed to come to talk to him, as he wished to tell her something. The respondent agreed and they went to the Waterside Hotel.
At the hotel, the appellant sexually propositioned the respondent in very explicit and crude terms, and proposed that they have an affair. The respondent refused. Outside the hotel and on the way to Southern Cross Train Station, the appellant tried to kiss the respondent. The Judge characterised the appellant’s conduct in the LLA office in terms of s 28A(1)(b) and the remaining conduct in terms of both s 28A(1)(a) and (b).
(b) On Thursday, 14 May 2009, at the office of KPMG, the appellant again sexually propositioned the respondent and made other statements of a sexual kind. The Judge was satisfied that this conduct was within both s 28A(1)(a) and (b).
(c) On Friday, 15 May 2009, at the office of LLA, the appellant asked the respondent “what are you doing to keep Claudio happy?”. Claudio is the appellant’s first name. In the light of the events over the preceding days, the Judge regarded this question as a request for sexual favours. The Judge held that s 28A(1)(b) applied to this conduct.
(d) In the late evening of 15 May 2009, at the LLA office, the appellant engaged in sexual intercourse with the respondent and in touching and stroking her naked body, including her breasts and genitalia. The Judge characterised this conduct in terms of s 28A(1)(b).
11 Unsurprisingly, the findings about these events were based to a significant extent on the Judge’s assessment of the evidence of the appellant and the respondent. The Judge did not regard the appellant as a credible witness, finding that he was prepared to say anything which would assist his case. He said of the appellant’s evidence (at ):
… I have approached all of Mr Vergara’s evidence with suspicion. I have rejected it unless a cogent foundation existed (whether by reason of corroborating evidence or otherwise), which permitted me to regard Mr Vergara’s account as likely to be reliable.
The Judge gave detailed reasons for this assessment of the appellant’s credibility and for his rejection of much of his evidence.
12 The Judge regarded the respondent’s evidence as generally more reliable, although he considered that her evidence had been influenced by her animosity towards the appellant, a circumstance which had been aggravated by the fact that the appellant, being unrepresented, had cross-examined the respondent himself. In relation to the respondent’s evidence, the Judge concluded (at ):
… On the essential features of her account of the principal events, Ms Ewin’s evidence was consistent and cogent. However, I have taken a cautious approach to accepting Ms Ewin’s evidence and particularly so in relation to those topics mentioned above, where I considered her reliability to be particularly vulnerable. I have only accepted Ms Ewin’s evidence where I regarded it to be cogent and not significantly inconsistent with the prior statements she had made. Where her evidence was corroborated by other evidence, I had no difficulty accepting it.
13 In reaching these conclusions, the Judge considered in detail the consistency of the evidence of the appellant and the respondent with previous statements made by them, as well as with the evidence of witnesses called by each of the appellant and the respondent. The previous statements included statements which each had made to the police, statements which each had made in the course of two recorded conversations when the respondent, acting on a pretext, telephoned the appellant in July 2009, statements which the respondent had made in a conversation with a Nurse-On-Call service on 17 May 2014 (which had also been recorded), and statements which the respondent had made to a psychiatrist whom she consulted after the events in May 2009 for treatment. As can be seen from the passage quoted above, the Judge’s acceptance of the respondent’s evidence turned very much on the extent to which it was consistent with her previous statements. On the other hand, the Judge noted several inconsistencies between the appellant’s evidence at trial and his previous statements.
Grounds 1-5: The finding of sexual intercourse and touching
14 In relation to the incidents on the evening of 15 May 2009, the Judge made the following findings:
 I find that on 15 May, at or about the corridor outside the front door of the LLA office:
(i) Mr Vergara engaged in sexual intercourse with Ms Ewin; and
(ii) engaged in kissing Ms Ewin and touching and stroking her naked body including her breasts and genitalia.
 I find that the conduct was conduct of a “sexual nature” within the statutory meaning of that phrase as contained in s 28A(1)(b) of the SD Act. As French J said in Hall v Sheiban at 283, unwelcome sexual conduct will clearly extend to acts which may also constitute offences and civil wrongs such as sexual assault.
15 The Judge accepted that the respondent had no memory of this incident (at ), finding that she had been heavily intoxicated from about 10.00pm to at least midnight on 15 May (at ).
The issue on appeal concerning the finding of sexual intercourse and touching
16 By grounds 1 to 5 of his amended notice of appeal, the appellant contended, in various ways, that it had not been open to the Judge to be satisfied to the requisite degree that the sexual intercourse and sexual touching had occurred and, accordingly, that he had on 15 May 2009 engaged in conduct contravening s 28B(6) of the SD Act. Ground 1 asserted that it had not been open to the Judge to make these findings given that:
(a) [The Judge] had accepted  the evidence that some 40 minutes or so “prior to the sexual activity”, the respondent experienced nausea, sweatiness, the room expanding and contracting, vomiting and very substantial amnesia;
(b) his Honour had accepted that: “Fragmentary amnesia continued until after midnight and at that time [the respondent] was still feeling foggy, sick and dizzy.” ;
(c) the appellant’s response (in the record of interview held on 18 November 2009) to the police, when the latter put to him “Is it possible that you may have penetrated her?”, he answered, inter alia, “I-it-you m- , it may have been possible yeah – Possibly” …;
(d) the police did not lay a charge of rape or of any other sexual offence against the appellant in respect of those events; and
(e) the respondent had raised the allegation and bore the onus of proof to prove on the balance of probabilities that the appellant had engaged in sexual intercourse with her on 15 May 2009.
17 By Ground 3, the appellant asserted that the Judge had been in error in concluding at  that he had engaged in an “evasive attempt to avoid admitting to police that there had been sexual penetration”. By Ground 4, the appellant asserted that it had not been open to the Judge to infer, as he did at , that “even if the activity did not include vaginal penetration, it involved Mr Vergara extensively touching and stroking Ms Ewin’s breasts and genitalia”. Grounds 2 and 5 alleged that, in the light of the matters alleged in Grounds 1, 3 and 4, it had not been open to the Judge to find that the respondent had proved her case.
18 In introducing his submission on these grounds, counsel said that the appellant did “not shrink” from the Judge’s findings that the appellant had, in the days prior to 15 May 2009, expressed his desire to have sexual intercourse with the respondent; that in or about the corridor outside the front door of the LLA office, the appellant had been substantially naked and some of the appellant’s own clothing had been removed; that the appellant had been sexually aroused and had an erection; that the appellant and the respondent had been in the corridor for approximately 30 minutes to one hour; and that the respondent had reported waking on the morning of 16 May 2009 with physical symptoms consistent with deep penetration of her vagina having occurred.
19 Counsel also accepted that the appellant had made a number of admissions when interviewed by the police on 18 November 2009 of an incriminating kind. These included the appellant’s admissions that he could not exclude the possibility that sexual intercourse had occurred; that there was a chance that semen said by the respondent to have been found on her boots could be his; and, although not admitting to ejaculation, his statement that:
It was probably me. I would be surprised if, you know, it was somebody else. I’m saying it’s probably me, somehow.
The appellant had also admitted to the police that he and the respondent had engaged in “a lot of … amorous type” activity, described as “carrying on”, “consensual sex” and “sexual activity”, and that they had been “two animals”.
20 Counsel submitted that, despite these matters, it had not been open to the Judge to reach the degree of satisfaction necessary for the findings made in  of the reasons, quoted earlier in these reasons.
21 Counsel emphasised the gravity of the finding of sexual intercourse and sexual touching in the context that this conduct was also found to be “unwelcome”. He contended that it was tantamount to a finding of rape. Counsel referred to the moral obloquy flowing from the finding, suggesting that it would stigmatise the appellant permanently. In these circumstances, counsel submitted that the Judge had failed to apply appropriately the approach discussed by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 and as required by s 140 of the Evidence Act 1995 (Cth) (Evidence Act), saying:
We contend … that, in spite of what the learned trial judge said in the Reasons at , he materially underestimated the impact of the gravity of the matter alleged. That being so, his Honour did not, properly understood, take into account the gravity of the matters alleged, as was his duty under s 140(2)(c) of the Evidence Act 1995 (Cth).
22 This contention was at the heart of the appellant’s submissions with respect to the Judge’s findings concerning the events of 15 May 2009 and, accordingly, it is appropriate to refer in some detail to the relevant principles.
23 In the well-known passage in Briginshaw at 361-2 (which involved the question of whether adultery had been proved), Dixon J held:
[W]hen the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for vicarious purposes. … Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
As can be seen, Dixon J emphasised that the nature and consequence of the fact to be proved is pertinent to the degree of satisfaction required of the fact finder before concluding that the fact has been proved. Dixon J continued at 362-3:
This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues … But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected.
Similarly, at 347, Latham CJ said:
[T]he ordinary standard of proof in civil matters must be applied to the proof of adultery in divorce proceedings, subject only to the rule of prudence that any tribunal should act with much care and caution before finding that a serious allegation such as that of adultery is established.
The reasons of Rich J at 350 contain a statement to like effect:
In a serious matter like a charge of adultery the satisfaction of a just and prudent mind cannot be produced by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion. The nature of the allegation requires as a matter of common sense and worldly wisdom the careful weighing of testimony, the close examination of facts proved as a basis of inference and a comfortable satisfaction that the tribunal has reached both a correct and just conclusion.
24 Reference may also be made to Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171 in which Mason CJ, Brennan, Deane and Gaudron JJ said:
[T]he strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
Counsel referred also to Morley v Australian Securities and Investments Commission  NSWCA 331 at - and to Seltsam Pty Ltd v McGuiness  NSWCA 29 at .
25 The effect of the approach stated in Briginshaw and the later authorities is that the graver the allegations and their potential consequences, the stronger is the evidence required to conclude that the allegations have been established: Ashby v Slipper  FCAFC 15 at .
26 Section 140 of the Evidence Act provides:
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
It has been held that s 140(2) reflects the common law as stated in Briginshaw and as applied in the later authorities: Morley v ASIC  NSWCA 331 at ; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission  FCAFC 132 at ; (2007) 162 FCR 466 at 480; Ashby v Slipper  FCAFC 15 at .
27 The Judge in the present case did not overlook these authorities, nor the content of s 140. He referred (at - and ) to s 140(2) of the Evidence Act and (at ) to the passage in the reasons in Neat Holdings quoted above.
28 The Judge concluded his findings with respect to the events of 15 May 2009 by saying (at ):
My satisfaction that Ms Ewin proved her case on the balance of probabilities included consideration of the matters specified by s 140(2) of the Evidence Act. I regarded the gravity of the conduct alleged as very serious. A high degree of moral opprobrium attaches to conduct of the kind alleged, although not nearly so much as would have attached to a rape or a serious sexual assault which involves an intent to rape or assault as a necessary element of the offence. Having regard to the seriousness of the conduct involved, I was satisfied that the strength of the evidence was sufficient to establish, on the balance of probabilities, that Ms Ewin had proved her case.
This is a clear indication that the Judge was conscious of the gravity of the appellant’s allegations and of the need for cogent evidence before he found those allegations proved.
29 Counsel for the appellant contended that, whilst the Judge had referred to s 140(2) and to Neat Holdings and therefore to the requirement for cogent proof of the respondent’s serious allegations, he had not in fact applied such an approach. Counsel relied on the following matters:
(a) The respondent, who was on the Judge’s finding (at ) heavily intoxicated at the time of the incident she alleged, had no recollection of it and could give no direct evidence about it. The appellant submitted that the Judge, while finding that the respondent had no recollection of the incident, failed to address the significance of that finding. The Judge should, it was said, have regarded the respondent’s absence of recollection as “a fatal weakness” to her claim which, in the absence of an “unequivocal admission” by the appellant that sexual intercourse had occurred, “compelled” the conclusion that the allegation be dismissed;
(b) The appellant had made no clear admission that he had engaged in sexual intercourse with the respondent;
(c) The rejection of the appellant’s evidence could not be regarded as positive proof that intercourse had occurred. Disbelief in a witness’ evidence does not ordinarily establish the contrary: Kuligowski v Metrobus  HCA 34 at ; (2004) 220 CLR 363 at 385. The Judge had in any event been in error in characterising the appellant’s responses when interviewed by the police as “an evasive attempt to avoid admitting to police that there had been sexual penetration”;
(d) Although the matter had been reported to the police, they had not laid any charge of rape or other sexual offence against the appellant;
(e) The evidence to support a finding of sexual intercourse or sexual touching of Ms Ewin’s breasts and genitalia was “weak”.
Appellate review: The principles
30 The respondent’s claim with respect to the events on the evening of 15 May was a circumstantial case. This meant that the evidence accepted by the Judge had to support a “reasonable and definite inference” that sexual intercourse and touching of the respondent’s breasts and genitalia had occurred and not merely “conflicting inferences of equal degree of probability so that the choice between them [was a] mere matter of conjecture”: Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5; Jones v Dunkel (1959) 101 CLR 298 at 304-5; Trustees of the Property of Cummins (a bankrupt) v Cummins  HCA 6 at ; (2006) 227 CLR 278 at 292; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission  FCAFC 132 at ; (2007) 162 FCR 466 at 482.
31 The approach required of an appellate court in determining challenges to findings of fact made by a trial judge was the subject of some debate at the hearing. In my view, the proper approach is well-established. In Fox v Percy  HCA 22 at -; (2003) 214 CLR 118 at 126-8, Gleeson CJ, Gummow and Kirby JJ said:
 Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect”. In Warren v Coombes, the majority of this Court reiterated the rule that:
“[I]n 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 undisputed 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.”
As this Court there said, that approach was “not only sound in law, but beneficial in … operation”.
 After Warren v Coombes, a series of cases was decided in which this Court reiterated its earlier statements concerning the need for appellate respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not. Three important decisions in this regard were Jones v Hyde, Abalos v Australian Postal Commission and Devries v Australian National Railways Commission. This trilogy of cases did not constitute a departure from established doctrine. The decisions were simply a reminder of the limits under which appellate judges typically operate when compared with trial judges.
 The continuing application of the corrective expressed in the trilogy of cases was not questioned in this appeal. The cases mentioned remain the instruction of this Court to appellate decision-making throughout Australia. However, that instruction did not, and could not, derogate from the obligation of courts of appeal, in accordance with legislation such as the Supreme Court Act applicable in this case, to perform the appellate function as established by Parliament. Such courts must conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.
 Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.
 That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being “incontrovertible”, an appellate conclusion may be reached that the decision at trial is “glaringly improbable” or “contrary to compelling inferences” in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process.
32 This means that an appeal requires a real review of the evidence. When a trial judge’s decision on an issue involves an assessment of the quality and reliability of a witness, the appellate court must make due allowance for the advantage of the trial judge resulting from having seen and heard the witness give evidence. Despite that advantage, the court may overturn a finding based on credit if “incontrovertible facts” or “uncontested testimony” indicate error in the judge’s conclusion or if the decision at trial is “glaringly improbable” or “contrary to compelling inferences”.
33 The appellate task in this case is made easier by the fact that the appellant does not, with the possible exception of Ground 3, challenge the primary findings of fact made by the Judge, nor the Judge’s credit findings. His challenge instead was that it had not been appropriate for the Judge to infer from the found facts that sexual intercourse or sexual touching had occurred on the evening of 15 May 2009. This is a case in which the Court was, in effect, asked to apply the approach outlined in Warren v Coombes (1979) 142 CLR 531, that is, to decide on the proper inferences to be drawn from the facts found by the Judge and to give effect to its own conclusion in that respect. This has made it unnecessary for this Court to consider all of the evidence reviewed by the Judge in reaching those findings of fact which are undisputed in this Court.
Events before 15 May 2009
34 The appellant’s evidence was to the effect that, before the week commencing 11 May 2009, he had been subject to “sexually predatory behaviour” by the respondent, which behaviour had commenced in early April 2009. He claimed that the respondent’s behaviour towards him had been “intrusive, flirtatious and coercive” (at ); that she had regularly made bodily contact with him; that her behaviour had increased in intensity and in nature; that she had regularly massaged his neck and shoulders; that he had asked the respondent to desist but that she had persisted; that she had made a number of sexually suggestive remarks; and that he had had to take a number of steps to avoid or discourage her conduct. The Judge rejected this evidence in its entirety (at ), finding that it was untruthful and a recent invention (at ). The Judge also accepted the respondent’s evidence of four incidents in the period between early April and 11 May 2009 and held that they evidenced the appellant’s sexual interest in her (at ).
35 In relation to events in the week commencing 11 May 2009, the appellant said that at the Southern Cross Train Station on the evening of 12 May 2009, the respondent had suggested that they go to a hotel for drinks and later had suggested that they go dancing together. He had declined that suggestion. The Judge accepted that the appellant and the respondent had had drinks together on the evening of 12 May, but found that that was at the appellant’s instigation; that he had been the one who suggested that they go dancing (at -); and that they had not done so because the respondent had refused to do so.
36 The appellant said that it had been the respondent who, on 13 May 2009, had suggested that they go for a drink after work. He said that they had spoken mainly about matters concerning their work and had then walked to the Southern Cross Train Station together to catch trains to their respective homes. He denied having sexually propositioned the respondent. The Judge concluded that the appellant’s account of the events on 13 May was “entirely unconvincing” (at ). In particular, the Judge noted that in one of the pretext telephone conversations, the appellant had effectively admitted sexually propositioning the respondent in the explicit and crude way she had described, and he found that had occurred on the evening of 13 May (at ).
37 On Thursday, 14 May, the appellant and the respondent attended a meeting at KPMG regarding the affairs of LLA. The respondent’s account was that, while they were waiting, the appellant sought the respondent’s attitude to his sexual propositioning on the previous evening. She had responded by expressing disinterest and telling him that they would not be having an affair. The respondent’s evidence was that the appellant had then responded with some very sexually explicit statements.
38 The appellant denied this account. He said that he had accompanied the respondent to the meeting at KPMG unwillingly and that, while they were there, the respondent had proposed that on the Friday night they go to a Latin bar to dance. He had indicated that he was unable to do so. The Judge rejected the appellant’s account and, in substance, accepted that of the respondent.
The events of 15 May 2009
39 On Friday, 15 May 2009, in the late afternoon, the appellant, the respondent, other employees of LLA and employees of the Melbourne Aquarium attended a drinks function at the Aquarium. Both the appellant and the respondent consumed some alcohol while there but had relatively little to do with one another. At about 7.00pm, a group, which included the appellant and the respondent, moved to the Insignia Bar in Flinders Street, Melbourne. Both consumed some alcohol at that Bar. At about 10.00pm, the respondent began to feel sick, hot, nauseous and giddy. She went to the toilet where she vomited. The respondent deposed then to having no recollection for a period of about two hours, with her next recollection being back in Flinders Street at the front door of the Insignia Bar at about 12.00 midnight.
40 The respondent said that during the course of the evening she had attempted to avoid contact with the appellant, although they had spoken from time to time.
41 In general, the evidence of the respondent was supported by that of another witness, Ms Thomas, whom the Judge regarded as honest and reliable. At one stage during the evening, and as a result of a comment made to her by the respondent about the appellant, Ms Thomas went looking for the respondent. She saw the appellant and the respondent standing together with the appellant’s arm across the respondent’s body holding her against a wall. The respondent appeared to be angry and yelling at the appellant. Ms Thomas enquired “is everything OK?” to which the respondent answered with words like “I am handling it”.
42 Ms Thomas saw the respondent later in the ladies’ toilet. The respondent appeared to be drunk and angry, and was swearing about the appellant. The Judge accepted Ms Thomas’ evidence and found that the appellant and the respondent had had an angry confrontation, in the course of which she had expressed vehement resistance to the appellant’s sexual propositioning (at -).
43 As already indicated, the respondent said that her next recollection was being back at the front door of the Insignia Bar. She attracted the attention of two staff members and obtained from them some possessions which she had left in the bar, including her laptop, wallet and handbag. The respondent went to the Southern Cross Station intending to catch her train home but ultimately caught a taxi instead.
44 The appellant’s account was to the following effect. At the Melbourne Aquarium, he and the respondent had had relatively little to do with one another. However, on one occasion, as the respondent had passed him, she had pulled him closer to her, kissed his earlobe, and at the same time “smiled sweetly”. Later, and shortly before the function at the Aquarium concluded, the respondent had proposed that they have only a few drinks with the group at the Insignia Bar and then go alone to Latin bars for dancing. He had declined the suggestion.
45 The appellant said that at the Insignia Bar he had been drinking with a small group which included the respondent until about 10.30pm. When he went to leave, the respondent had said “wait for me, we are going dancing”. He had responded by saying it was time to go home, but the respondent had pulled him by his backpack and that the next thing was “we were kissing somewhat passionately near the King Street exit door”. He said that that continued for some minutes before the respondent expressed concern that they would be seen by work colleagues. She suggested that they go to the LLA office for privacy.
46 The appellant’s account of what occurred at the LLA office, as contained in his written witness statement, was as follows:
As we exited the lift the Applicant and I continued kissing in a very passionate manner. We moved virtually attached around the corridor nearest to the office door entrance. I recall the Applicant then began to strip and unbuckled my belt and trousers whilst still kissing. That continued for the next few minutes until the Applicant was completely naked. I don’t recall how she did it but she had nothing on other than her knee high boots and a necklace. She was kissing and touching me all over. Further, the Applicant was walking up and down the corridor in a dancing like manner, simulating erotic dancing. That went on for a few minutes. I then remember needing to go to the toilet urgently to urinate as I had waited a little too long (before going to the toilet) while watching the private show the Applicant (my boss) was providing for me. I stood at the urinals and after a few minutes went back to the corridor.
47 The appellant said that when he came back from the toilet, the respondent was getting dressed and said that she needed to go to the Insignia Bar urgently to retrieve her laptop. They then “virtually raced” back to the Insignia Bar where the respondent did retrieve her laptop and from there they went to the Southern Cross Station.
The circumstantial case that sexual intercourse and sexual touching had occurred
48 On the evidence accepted by the Judge, the circumstantial case that sexual intercourse and sexual touching had occurred was strong.
49 The principal uncontested findings from which the inference of sexual intercourse and touching of Ms Ewin’s breasts and genitalia on 15 May 2009 could be drawn were the following:
(a) At approximately 10.40pm, the appellant and the respondent were together and alone in the corridor outside the LLA office for between 30 minutes and one hour: at , . The appellant had acknowledged being there for some 20 minutes.
(b) The respondent was substantially naked and some of the appellant’s clothing had been removed: at ,  and . On his own admission, the appellant’s belt and trousers were unbuckled: at .
(c) The appellant was sexually aroused and had an erection: at , .
(d) On his own admission, the appellant had kissed, cuddled and caressed the respondent’s naked body: at ,  and , although he did not admit that that included touching of the respondent’s breasts and genitalia.
(e) The respondent gave evidence that, on the morning of 16 May, she had physical feelings consistent with deep vaginal penetration, a burning feeling in her vagina and pain in her inner thighs: at , . Because of some inconsistencies between the respondent’s account of these matters in evidence and her account of the same matters to the police, the Judge said (at ) that he would not have found on the basis of the respondent’s evidence on this topic alone that intercourse had occurred. However, it is evident that he accepted it as part of the circumstantial case, and it was appropriate for him to have done so.
(f) In his interview by the police, the appellant had described his and the respondent’s activities on the night of 15 May as “sexual activity” and “consensual sex”; that “there was a bit of carrying on, in terms of sexual activity”; that there had been “kissing, cuddling, caressing”; that they had been “two consenting adults”; and that they had been “two animals”: at  and . It is evident that, at the time of the police interview, the appellant had perceived the issue as being that of whether his activity with the respondent had been consensual.
(g) In the days preceding 15 May 2009, the appellant had communicated in a “persistent” and “resolute” manner, his “vigorous” and “aggressive” desire to have sexual intercourse with the respondent: at . On 13 May, he had propositioned the respondent to have sexual intercourse with him in crude and explicit language: at , , and on 14 May he had made clear his sexual interest in the respondent: at  and .
(h) On earlier occasions, the appellant had made remarks which, either expressly or indirectly, indicated his sexual interest in the respondent.
(i) The respondent’s subsequent conduct was consistent with her belief that sexual intercourse had occurred. The respondent contacted a Nurse-On-Call service on 17 May and stated that she wanted to address the risk of unwanted pregnancy from a “Friday night work’s thing”: at . The respondent made other statements during this call (which was recorded) which were consistent with her belief that sexual intercourse had occurred. In addition, the respondent told her treating chiropractor, whom she consulted on 16 May, that she had pain and stiffness to her right neck and shoulder as a result of a sexual assault (at  and ).
(j) In a conversation with the respondent on 1 July 2009, the appellant did not deny that sexual penetration had occurred, acknowledged the possibility that it had in fact occurred, and instead expressed doubt as to whether he had ejaculated: at  and . This conversation occurred when the respondent, acting on a pretext, informed the appellant that she was pregnant. The appellant’s response, which was recorded, indicates that he was alert to the possible paternity implications.
As I have indicated, these were the principal uncontested findings considered on the appeal. The Judge also made other findings which I have not summarised as part of the circumstantial case.
Ground 3 and the characterisation of an “evasive attempt”
50 As noted earlier, by Ground 3 the appellant challenged the Judge’s characterisation at  that the appellant’s statements when interviewed by the police on 18 November 2009 were an “evasive attempt” to avoid admitting that there had been sexual penetration. The appellant submitted that this characterisation was an error, although the submissions did not indicate why it should be so regarded. It is appropriate to consider this ground before considering the effect of the uncontested findings summarised above.
51 The context in which the Judge made the “evasive attempt” characterisation can be seen when  is quoted in full:
That finding [of sexual intercourse] is supported by the fact that when Mr Vergara described to police the nature of the activities in which he and Ms Ewin had been engaged, he said they were “two animals”. In my view that comment was a slip made by Mr Vergara in what was otherwise an evasive attempt to avoid admitting to police that there had been sexual penetration. The comment reveals that the nature of the activities engaged in were vigorous and unrestricted. Mr Vergara’s vehement refusal to concede in cross-examination the act of penetration was equally unconvincing especially in the light of the first pretext conversation where Mr Vergara did not deny penetration, accepted it as a possibility and instead sought to cast doubt on whether he had ejaculated during intercourse.
52 As can be seen, the focus of the Judge in  was on the significance of the appellant’s description of the respondent and himself at the relevant time as “two animals”. The Judge concluded that that comment indicated that their activities were vigorous and unrestricted. The appellant’s admission in that respect enabled him more confidently to draw the conclusion that sexual intercourse had occurred. Curiously, the appellant did not challenge this aspect of the reasons in . He challenged only the Judge’s “evasive attempt” characterisation which, in context, appeared to be more in the nature of an aside.
53 In the light of the appellant’s challenge, I have reviewed the entire transcript of the interview of Sergeant Bannon of the appellant on 18 November 2009. It was not suggested that for the purpose of determining this ground of appeal the Court should also view the electronic record of that interview: cf. Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180. The transcript of the interview is extensive, extending over 100 pages.
54 Sergeant Bannon commenced by telling the appellant that she was interviewing him in relation to an allegation of rape of the respondent said to have occurred on 15 May 2009. The appellant acknowledged that he and the respondent had left the Insignia Bar together and had gone to the LLA office. Over the course of the interview, the appellant acknowledged that “there was a bit of carrying on, in terms of amorous activity … We were … two adults … there probably was sexual activity, and that that’s as far as I can remember … there’s nothing more to say … there was two consenting adults … she took … all her clothes off and distinctively [sic] all she had on was her boots, and that’s all she … wanted to have on, and – yeah, I probably had taken some clothes off as well … There was some carrying on, sexual activity, but that’s all I can remember … Kissing, cuddling, caressing … what else do people do? Two consenting adults? … I’d say there were two adults consenting to sexual activity … I’m not denying that [the respondent] and I were messing around in a sexual way in the office on the … night of the 15th of May. At times I did [have an erection] … It was throughout … [the] time that we were there … was I there that night? Yeah, I was there that night. Was there sexual activity? Yes, sexual activity. … She was naked, except for the boots and … the rest is two adults consenting to sexual activity. What exactly we got up to I can’t tell you the detail, because I can’t exactly remember … I’m not denying that I was there, and that there was sexual activity”.
55 Sergeant Bannon asked the appellant several questions on the topic of penetration:
Q203 Did you penetrate her with your penis in …?
A That – that part, I’ve been thinking about it since you rang me this morning, and I – I can’t say that I did.
A Yeah I can’t say that I did, and the reason for that is because …
A And I was probably – probably struggling to – to – to – … to have a – what do you call it – sure I’ve got the right word – erection.
Q207 Ok. Is it possible that you penetrated her with your penis?
A Possible? I don’t know. I can’t remember that part.
Q209 How – how can you recall that you were struggling to get an erection …?
A No, no. I didn’t say I was struggling to get an erection. I …
A I – that – that happens when – when – so if you’re asking “Did you – did you get that – did you get to that point?”
A I – I – I’m a – I’m a healthy male, but you get an erection at the various point –, at different points and times for whatever reason, or for obvious reasons, but you – at that point in time when – if you are asking me did I – did I penetrate [the respondent], I – my answer is I don’t know.
A I don’t think so.
Q220 Is it possible that you may have penetrated her?
A Is it possible? I – it – you m–, it may have been possible, yeah.
Q223 And then …?
A But – but I – I guess my point is, it’s two consenting adults. We’re in the room. She was making a point of just having her boots on only, walking …
A Up and down I – I mean, you know …
A Yeah. Two consenting adults here.
56 The appellant told Sergeant Bannon that both he and the respondent were drunk. The following exchange then occurred:
Q246 … do you believe that [the respondent] was actually able to consent?
A I think you’re just speculating with that comment. I – I’ve got no idea what – and we were two animals. I said we were just …
A Both having a drink. She was – if I was saying to you she was running up a – running around, up and down, with her boots on making a point …
A Of it.
A And you tell me if she was able to consent.
57 As can be seen, the appellant referred several times in these passages to the consensual nature of his activities with the respondent. This is understandable given that the police had flagged to him that they were concerned about the respondent’s consent.
58 Although the appellant emphasised the respondent’s consent, he avoided an express acknowledgement that he had sexually penetrated the respondent. Given his recall of other events while he and the respondent were at the LLA office that night, his professed lack of recollection of whether penetration had occurred was implausible. On his own account he had been with the respondent for a significant period, she was naked and engaging in flaunting behaviour, he was sexually aroused, and he had kissed, cuddled and caressed the respondent.
59 There was a reason for the appellant to be wary about making a formal admission of penetration as he had been told that the police were investigating an allegation of rape.
60 Having reviewed the transcript of the police interview, I consider that the Judge’s characterisation of the appellant’s responses as an “evasive attempt” to avoid an admission that there had been sexual penetration was not only justified, but appropriate. It is not plausible to suppose, in the circumstances described by the appellant, that penile-vaginal intercourse did not occur or that the appellant was unaware that it had occurred.
61 This ground of appeal fails.
Conclusion on the circumstantial case
62 In my opinion, the principal uncontested findings which I summarised earlier, together with the appellant’s admissions to the police which I have outlined in the previous section of these reasons, constituted a compelling case that the appellant had sexual intercourse with the respondent on the night of 15 May 2009 and had engaged in the touching of her breasts and genitalia. The appellant was sexually interested in the respondent and had made his desires known to her. On the night of 15 May 2009, he had both the opportunity and the time to achieve his desire. On the unchallenged findings of fact, the Judge’s conclusion that sexual intercourse had occurred was inevitable.
63 It is improbable that sexual intercourse occurred, but not the touching of the respondent’s breasts and genitalia. Counsel submitted that the appellant’s admission that he had kissed, cuddled and caressed the respondent was not necessarily an admission that he had touched her breasts and genitalia. One may accept that that is so as a matter of theory but, in the circumstances of this case, it is not a realistic possibility. I also note that the appellant did not assert in his evidence that he had used the words “kissing, cuddling and caressing” when speaking to the police with some confined meaning, so as not to include the touching alleged.
64 The particular circumstances to which the appellant drew attention on the appeal do not, in my opinion, displace the compelling effect of the evidence summarised above. The circumstance that the respondent was intoxicated and disoriented and had no memory of events meant only that she could not give direct evidence of the intercourse and sexual touching. It does not detract from the quality of the circumstantial case, which includes the significant admissions made by the appellant himself. I observe that it is not uncommon for juries to find proved to the criminal standard a charge of rape or unlawful sexual intercourse with an unconscious victim on evidence which is entirely circumstantial, and for such convictions to be upheld on appeal: see, for example, R v McGuire  QCA 290 and R v Prasad  SASC 131. Contrary to the appellant’s submission, the circumstance that the respondent had no recollection of the events did not “compel” a conclusion that her claim must fail.
65 The circumstance that the police had not laid a charge of rape or of any other sexual offence is immaterial. It was for the Judge to assess the evidence, without regard to the assessments of others about that evidence. Further, the elements of the offence of rape are different from those of sexual harassment under the SD Act; the reasons for the police prosecution decision are not known; and the police may not, in any event, have had access to all the evidence adduced before the Judge.
66 As already noted, the Judge was alert to the seriousness of the finding which he made in favour of the respondent. His reasons indicate that he reached his decision having regard to the necessity for cogent evidence. It is evident that the Judge scrutinised the respondent’s evidence with care before accepting it and, even when accepting it, exercised care before relying on it as part of the circumstantial case against the appellant. There were some aspects of the respondent’s evidence which the Judge did not accept. As noted earlier, the Judge said that he accepted the respondent’s own evidence only when he regarded it to be cogent and not significantly inconsistent with her previous statements. The care which the Judge exercised in this respect is evident in his observations about the respondent’s evidence at -, , , , , -, -, - and .
67 The finding of sexual intercourse and sexual touching was, in my opinion, not only open to the Judge on the evidence but a compelling finding. There is no basis on which this Court could conclude that the Judge did not apply appropriately the Briginshaw approach or had failed to give effect to s 140 of the Evidence Act.
68 On the hearing of the appeal, the appellant complained only of the finding that sexual intercourse and sexual touching had occurred. He did not contest the finding that the sexual intercourse and sexual touching were “unwelcome” for the purposes of s 28A(1) of the SD Act.
69 For these reasons, I consider that Grounds 1 to 5 fail.
Ground 6: Did the harassment on 13 May 2009 occur at a “workplace”?
70 The Judge found that the conduct of the appellant in three separate incidents on the evening of 13 May 2009 amounted to sexual harassment in contravention of s 28B(6) of the SD Act. First, at about 8.30pm at the LLA office, the appellant turned off the office lights, walked behind the respondent’s desk and touched her hand while attempting to turn off her computer. When the respondent protested, the appellant said that he would turn the lights on only if she agreed to come and talk to him about something. The respondent agreed to accompany the appellant to the Waterside Hotel which was across the road from the LLA office.
71 At the Waterside Hotel, the appellant made a number of sexually explicit statements including proposing that he and the respondent have an affair.
72 The third incident occurred when the appellant attempted to kiss the respondent while they were walking along King Street to their train station.
73 The SD Act as in force in 2009 did not make unlawful all sexual harassment by a workplace participant. It was only harassment by a workplace participant of another workplace participant at a place that is a workplace of both of those persons which was unlawful (s 28B(6)). Item 55 to Schedule 1 of the Sex and Age Discrimination Legislation Amendment Act 2011 (Cth) amended s 28B(6) so as to refer to “a workplace of either or both” of the workplace participants. However, the transitional provision in item 69 of the amending Act means that that amendment is of no effect in the present case.
74 The expression “workplace” is defined in s 28B(7) to mean:
A place at which a workplace participant works or otherwise carries out functions in connection with being a workplace participant.
The Judge was satisfied that the Waterside Hotel and the place in King Street at which the appellant attempted to kiss the respondent were workplaces within the statutory definition. In relation to the Waterside Hotel, the Judge reasoned as follows:
 The conduct occurred at the Waterside Hotel across the road from the LLA office and immediately followed the sexual harassment which I have found occurred at the office. The conduct was part of the same course of sexual harassment which began in the office. The movement from the office to the Waterside Hotel was initiated by Mr Vergara as part of his sexual harassment of Ms Ewin in the office and was acceded to by Ms Ewin in reaction to that harassment at the office, in an endeavour to move to a safer place.
 In that respect at least, the purpose of the attendance and thus the function there carried out was to deal with the sexual harassment which began at the workplace. It makes no difference to the existence of that function that Mr Vergara’s purpose was to enlarge the sexual harassment while Ms Ewin’s purpose was to diminish it.
 For a place at which sexual harassment occurs to satisfy the statutory definition of “workplace”, the function carried out at that place needed to be “in connection with” Mr Vergara and Ms Ewin being workplace participants. The phrase “in connection with” used in the s 28B(7) definition of “workplace” is a phrase of wide import. The words require a mere relation between one thing and another and do not necessarily require a causal relationship between the two things: Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 at 479 (Wilcox J).
 The relation between what Mr Vergara and Ms Ewin were doing at the Waterside Hotel and each being a workplace participant is established by the fact that the sexual harassment at the LLA office was workplace based harassment and that Ms Ewin and Mr Vergara moved to the Waterside Hotel to deal with that incident of harassment. Those matters establish a sufficient connection to the workplace to render the Waterside Hotel a “workplace” for the purposes of s 28B(6) during the course of Mr Vergara’s and Ms Ewin’s attendance at that place.
75 As can be seen, the Judge concluded that the appellant and the respondent had moved to the Waterside Hotel “to deal with” the earlier harassment in the LLA office and, accordingly, were carrying out functions “in connection with” being workplace participants.
76 In relation to the kissing incident, the Judge held that the street in which that occurred had “a sufficient workplace nexus” and satisfied the statutory definition of “workplace” for the same reasons which he had given in relation to the Waterside Hotel (at ).
77 The appellant contended that on a proper construction of the definition of “workplace”, neither the Waterside Hotel nor King Street should have been regarded as “a workplace” for the purposes of s 28B(6). His submission was that, giving the definition of “workplace” a liberal construction as is appropriate for remedial legislation, it could not reasonably be said that, while at the Waterside Hotel and in King Street, either he or the respondent were carrying out functions in connection with being workplace participants. He accepted that the first incident in the LLA office was at a workplace as defined.
78 As is well established, the process of statutory construction must commence with the words actually used and take account of the context and purpose of the provisions in question: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT)  HCA 41 at ; (2009) 239 CLR 27 at 46-7; Commissioner of Taxation v Consolidated Media Holdings Ltd  HCA 55 at ; (2012) 293 ALR 257 at 268-9.
79 Some features of s 28B may be noted. Section 28B makes unlawful sexual harassment in six circumstances. In the first five circumstances, nothing turns on the location at which the harassment occurs. However, as I have said, subs (6) limits the proscription of sexual harassment by one workplace participant (being an employer, employee, commission agent, contract worker or partner in a partnership) of another workplace participant to places which are workplaces of both. Thus, the operation of subs (6) turns not on the relationship between the workplace participants but on the circumstance that the conduct occurs at a place in which they are both engaged in activities of a defined kind.
80 The definition of “workplace” has two limbs: referring first to the place at which a workplace participant works; and, secondly, to a place at which a workplace participant otherwise carries out functions in connection with being a workplace participant. The Judge’s findings in this case turned on the second of these limbs.
81 The word “function” is defined in s 4 of the SD Act to include “duty”. That is an inclusive definition. The word is generally understood as meaning “the kind of action or activity proper to a person, thing or institution”: Macquarie Dictionary.
82 In my opinion, the expression “otherwise carries out functions in connection with being a workplace participant” should be construed as a composite provision having regard to each of its elements. It refers to a place, other than that at which the workplace participant works, at which the person carries out an activity of the requisite character. It may be a fixed or moving location, as the definition of “place” indicates. A function of the requisite type may be carried out at a place regularly, infrequently or on a single occasion only. As the trial Judge noted at , the two limbs in the definition of “workplace” recognise that work or work-based functions are commonly undertaken in a wide range of places (including on various means of transport) beyond the principal or ordinary place or places of work of workplace participants.
83 The requirement that a workplace be a place at which workplace participants carry out functions in connection with being a workplace participant indicates that a place at which the participant happens to be, or to which the participant goes, will not necessarily be a workplace: it must in addition be a place at which the participant “carries out functions” in connection with being a workplace participant. The words “carries out” and “function” imply the performance of some acts required, expected or authorised by the person’s employment, agency, contract or partnership. The words “in connection with” indicate that the requirement, expectation or authority need not be express nor direct. It is sufficient if the function being carried out is “in connection with” the person being a workplace participant. Adapting the language of Cory J in Flieger v New Brunswick  2 SCR 651 at 663-4, the place must be a location at which the person carries out some aspect of “the bundle of responsibilities, duties and activities” connected with being a person in one of the defined work categories.
84 The question of whether a particular location is a place at which a workplace participant carries out functions in connection with being a workplace participant is a question of fact to be determined in accordance with the understanding I have outlined. It means that one must be able to identify a function or functions in connection with being a workplace participant being carried out by each of the participants at the location in question.
85 As noted earlier, the Judge found (at ) that the Waterside Hotel was a “workplace” for the purposes of s 28B(6) while the appellant and the respondent were there on 13 May 2009 because each was a workplace participant; because the appellant had earlier sexually harassed the respondent at the LLA office; and because they had moved to the Waterside Hotel “to deal with that incident of harassment”. The Judge’s statement that the appellant and the respondent had moved to the hotel “to deal with that incident of harassment” has to be understood in the context of the Judge’s earlier factual findings. Those findings indicate that the Judge was not intending to convey that either the appellant or the respondent was going to the hotel in order to confront or address the issue, in the sense of the respondent admonishing or counselling the applicant. The Judge’s earlier findings indicate only that the respondent, as a result of being frightened, had agreed to the appellant’s request that she talk to him and wanted that conversation to take place in a safer location, i.e., where they were not alone. It was in that sense that the Judge concluded that they had gone to the hotel to “deal with” the earlier incident of harassment.
86 I consider that it is difficult to characterise the activity of the respondent at the Waterside Hotel as the carrying out of a function in connection with her being an employee of LLA. She does not appear then to have been engaged in any activity required, expected or authorised by her employment, nor does she appear to have been carrying out some aspect of the bundle of responsibilities, duties and activities of that employment. However, it is not necessary to reach a concluded view about that because s 28B(6) as in force in 2009 prohibited sexual harassment of one workplace participant by another only at a place which was a workplace of both.
87 In my respectful opinion, it cannot reasonably be concluded that on the night of 13 May 2009 the appellant was carrying out any function at the Waterside Hotel in connection with his contract work or in connection with his being a contract worker. He was there solely to importune the respondent for sexual favours. It seems to be implicit in  of the Judge’s reasons that the appellant’s sole “function” at the hotel was his sexual pursuit of the respondent. It cannot be said that, by accompanying the respondent to the hotel, the appellant was complying with an implicit direction from the respondent in her capacity as his superior.
88 In my respectful opinion, the Judge focussed inappropriately on the connection between the events in the Waterside Hotel and the events at the LLA office and did not identify, as required by s 28B(6) and the definition of “workplace”, any function being carried out by each of the appellant and the respondent in connection with their being workplace participants.
89 It is not necessary to express a view on the respondent’s submission that a place to which two workplace participants go for the “maintenance of a proper working relationship” will be a workplace as defined. On any view, on the Judge’s findings, the appellant was not at the Waterside Hotel for such a purpose.
90 As already noted, s 28(6) limits the proscription of sexual harassment by workplace participants to places which are the workplaces of both. The Waterside Hotel on 13 May cannot be so characterised.
91 For similar reasons, I consider that the Judge’s conclusion with respect to the kissing incident in King Street is also erroneous.
92 Accordingly, I would hold that Ground 6 in the amended notice of appeal has been made out and, accordingly, that only the incident of harassment which occurred in the LLA office on 13 May 2009 was a contravention of s 28B(6) of the SD Act. The declaration made by the Judge with respect to the incidents on 3 May 2009 should be varied so as to reflect this conclusion.
The relationship between appellant and respondent
93 By Ground 7 of the amended notice of appeal, the appellant contended that the Judge had failed to take into account a relevant consideration, namely his relationship with the respondent. Counsel contended that although the Judge had acknowledged that the respondent was the appellant’s supervisor, he had not adverted to the significance of this relationship when determining whether the appellant’s conduct constituted sexual harassment or when determining the award of compensation.
94 In my opinion, this ground of appeal has no merit. It appeared during counsel’s submissions that the complaint was based on a misconception. Counsel referred to s 28A(1A), which provides:
(1A) For the purposes of subsection (1), the circumstances to be taken into account include, but are not limited to, the following:
(a) the sex, age, sexual orientation, gender identity, intersex status, marital or relationship status, religious belief, race, colour, or national or ethnic origin, of the person harassed;
(b) the relationship between the person harassed and the person who made the advance or request or who engaged in the conduct;
(c) any disability of the person harassed;
(d) any other relevant circumstance.
Counsel emphasised subpar (b) which requires that the relationship between the person harassed and the person engaging in the harassing conduct be taken into account.
95 However, subs (1A) was inserted into the SD Act by Sch 1, item 54 of the Sex and Age Discrimination Legislation Amendment Act 2011 (Cth). The amendments effected by that schedule apply only to acts or omissions occurring after the commencement of the schedule, i.e., on 21 June 2011 (Sch 1, item 69). Accordingly, s 28A(1A) has no application in the present case.
96 Even if that were not so, I would still regard the ground as being without merit. The issue is whether a reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.
97 In the present case, the first incident of harassment on 13 May 2009 comprised the appellant’s sexual propositioning of the respondent in explicit and crude terms. The appellant’s conduct on this occasion was markedly different from anything which had occurred previously between the appellant and the respondent, and no question of the drawing of some inference from the previous response, or absence of response, from the respondent arises. I have refrained from setting out in these reasons the actual words used by the appellant, on the basis that it is unnecessary to do so. However, in my opinion, it is plain that a reasonable person hearing those words would have anticipated the possibility, at the very least, that the respondent would be offended, humiliated or intimidated by the appellant’s conduct, and that that would be so irrespective of her status as the appellant’s supervisor.
98 In any event, the respondent did not remain mute on 13 May. She rejected outright the appellant’s advances and told him firmly that she would not be having an affair with him. When later the appellant tried to kiss the respondent, she pushed him away saying “Don’t ever touch me again”. The respondent described herself variously as being “frightened”, “shaken”, “bewildered” and “terrified” by the appellant’s conduct on 13 May 2009.
99 On the Judge’s findings which, as noted, are not challenged, the respondent had not given the appellant any encouragement to continue his advances, whether on 13 May or on either of the next two days. It is true that she did not, in her capacity as the appellant’s superior, rebuke or discipline the appellant. However, that is a matter of no moment. Given the crudeness of the appellant’s statements and the firmness of the respondent’s rebuff of his advances, it could not sensibly be concluded that a reasonable person would not have inferred that the respondent would be offended, humiliated or intimidated by the appellant’s conduct.
100 The Judge was, in any event, conscious that the respondent was the appellant’s supervisor, referring to that circumstance at , ,  and at  at which the Judge addressed a submission made by the appellant at trial concerning that relationship.
101 Finally, I note that the present submission was not one which was made at the trial. Junior counsel for the appellant acknowledged that at the trial the appellant had not suggested that the fact that the respondent was in a position of power in relation to the appellant was relevant to what a reasonable person in his position may have anticipated or that it was relevant to the assessment of compensation.
102 This ground of appeal should fail.
The assessment of the compensation
103 The appellant appealed against one aspect only of the Judge’s assessment of compensation. The award of compensation was made up of the following heads of loss:
(a) Loss of past earning capacity;
(b) Loss of future earning capacity;
(c) General damages;
(d) Past expenses;
(e) Future expenses.
104 The assessment was made pursuant to s 46PO(4)(d) of the Australian Human Rights Commission Act 1986 (Cth) which permits a court making a finding of, amongst other things, sexual harassment, to order the respondent to pay to the applicant “damages by way of compensation for any loss or damage suffered because of the conduct of the respondent”.
105 As noted previously, after making allowance for other recoveries by the respondent, the Judge entered judgment for her against the appellant for the sum of $210,563 inclusive of interest.
106 The appellant’s complaint had its basis in the explanation which the Judge gave for rejecting the respondent’s claim to an award of exemplary damages. The Judge noted that there is a question as to whether s 46PO(4) authorises an award of exemplary damages, but considered it unnecessary to resolve that question. He referred to the principles discussed by Wilcox, O’Loughlin and Lindgren JJ in Sanders v Snell (1997) 73 FCR 569 at 601 and noted that exemplary damages are awarded only when a court is satisfied that the amount of compensatory damages has insufficient punitive force (at ). The Judge said (at ):
In my view the compensatory damages which I propose to award are not inadequate to punish Mr Vergara for the entirety of his unlawful conduct and to deter him and others from engaging in similar conduct. The imposition of an additional sum to facilitate those objectives is neither necessary nor warranted. On the basis of what I currently propose to award Ms Ewin, the contention made by Ms Ewin’s Counsel that Mr Vergara needs to be punished because he will not otherwise be punished is misplaced.
107 The appellant submitted that it could be inferred from this passage that the Judge had considered, inappropriately, that punishment of him had been relevant to, and taken into account in, the assessment of the compensation under s 46PO(4) for the various heads of damage which were allowed.
108 In my opinion, this ground of appeal should fail. First, the premise on which the submission is based is not sound. It does not follow from the circumstance that a compensatory award is sufficiently punitive of a contravention of the SD Act that the award was calculated by reference to punitive considerations. An award which is reached by reference only to compensatory considerations may nevertheless be regarded as having a punitive effect, especially when the burden of the award is to be borne by an individual.
109 Secondly, the appellant’s submission involves a reading of  of the Judge’s reasons without regard to its context. In the preceding paragraphs, the Judge had referred to several of the principles relating to an award of exemplary damages. In the paragraph immediately preceding that on which the appellant’s submission was based, the Judge said:
[A]ssuming that I have the power to impose an impost upon Mr Vergara for the purpose of punishment and deterrence, I would not do so for the same reasons that in tort an award of exemplary damages would not be made in circumstances such as the present. As Wilcox, O’Loughlin and Lindgren JJ explained in Sanders v Snell (1997) 73 FCR 569 at 601, exemplary damages will only be awarded if a court is satisfied that the quantum of the compensatory damages awarded has insufficient punitive force. Exemplary damages will be awarded “if, but only if”, the sum awarded as compensatory damages is inadequate to punish the wrongdoer for his or her conduct.
110 As can be seen, the Judge referred specifically to the principle that exemplary damages are awarded only when a Court is satisfied that the amount of the compensatory damages has insufficient punitive effect.
111 This was an application of orthodox principle. In Rookes v Barnard  AC 1129 at 1228, Lord Devlin said:
In a case in which exemplary damages are appropriate, a jury should be directed that if, but only if, the sum which they have in mind to award as compensation (which may of course, be a sum aggravated by the way in which the defendant has behaved to the plaintiff) is inadequate to punish him for his outrageous conduct, to mark their disapproval of such conduct and to deter him from repeating it, then it can award some larger sum. If a verdict given on such a direction has to be reviewed upon appeal, the appellate court will first consider whether the award can be justified as compensation and, if it can, there is nothing further to be said. If it cannot, the court must consider whether or not the punishment is, in all the circumstances, excessive.
112 Although other aspects of Lord Devlin’s reasons in Rookes v Barnard have been disapproved (see, for example, Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118), the quoted passage has been applied in Australia: Backwell v AAA  1 VR 182; Sanders v Snell (1997) 73 FCR 569 at 601. In the latter case, the Full Court of this Court said that “[e]xemplary damages, which are awarded as punishment and deterrence, will be awarded only if the Court … is satisfied that the quantum of the compensatory damages does not contain any or any sufficient element of punitive damages” (emphasis added). The decision in Sanders v Snell was overturned on appeal by the High Court on other grounds without the High Court addressing this aspect of the reasons of the Full Court (Sanders v Snell  HCA 64; (1998) 196 CLR 329).
113 Finally, as junior counsel for the appellant acknowledged, the reasons which the Judge gave for his award do not contain any indication that the Judge had regard to other than compensatory considerations. In particular, there is no indication that the Judge reached his compensatory award by reference to punitive considerations.
114 In my opinion, this ground of appeal fails.
Is re-assessment necessary?
115 It remains to consider whether the upholding by this Court of Ground 6 should have any effect on the Judge’s award of compensation. Junior counsel for the appellant submitted initially that, if Ground 6 was upheld, the matter should be remitted to the trial Judge for reassessment. However, counsel acknowledged that this Court could itself engage in any re-assessment which may be required. Counsel for the respondent contended that in the interests of efficiency and closure of litigation, this Court itself should engage in any re-assessment which may be required.
116 In making his award, the Judge did not consider or differentiate between the four incidents of sexual harassment which he found proved. Prima facie, this could suggest that the award did include compensation for the effects of the incidents of sexual harassment occurring on 13 May 2009 away from the LLA office, which I would set aside.
117 However, the Judge’s reasons indicate that he regarded the loss and damage suffered by the respondent for which the award of compensation was appropriate as resulting from the intercourse and sexual touching which had occurred on the evening of 15 May 2009, rather than from the earlier incidents. The following passages in the Judge’s reasons indicate that this is so:
 The unchallenged medical evidence was that as a result of what occurred on the evening of 15 May, in relation to which [the respondent] believed that she had been raped, [the respondent] suffered PTSD and depression.
 … Prof Dennerstein [a psychiatrist] diagnosed [the respondent] as suffering from PTSD as a result of what she referred to as the “harassment and rape” which took place at [the respondent’s] workplace. …
 I am satisfied that [the respondent] resigned from her employment with LLA with effect from 25 September 2009 because of the impact upon her of Mr Vergara’s physical sexual harassment on the evening of 15 May.
 There can be no doubt that [the respondent] has suffered greatly as a result of the sexual harassment inflicted upon her. Her immediate physical injuries included pain to her back and neck but her psychological injuries have been far more severe, having endured for over 3 years and being likely to continue for some time.
118 Although some of these passages are equivocal, in my opinion they indicate that the Judge regarded the respondent’s loss and damage as resulting from the act of physical sexual harassment rather than the earlier incidents of verbal harassment. Further, I regard it as significant that the Judge did not identify any separate or additional losses resulting from the incidents of verbal harassment. The potential of those earlier incidents to have caused the respondent loss is not to be gainsaid, but the appellant’s conduct on the evening of 15 May 2009 in engaging in unwanted sexual intercourse with, and sexual touching of, the respondent was obviously a much more significant event. The Judge’s findings indicate that he regarded the respondent’s losses as resulting from that conduct.
119 On that basis, I consider that the circumstance that Ground 6 is upheld and the findings of sexual harassment in contravention of s 28B of the SD Act in respect of the incidents away from the LLA office on 13 May 2009 are set aside does not warrant any revision of the Judge’s compensatory award.
120 It has not been necessary to consider grounds 8 and 10 of the Amended Notice of Appeal as the appellant did not pursue those grounds.
121 For the reasons given above, I would set aside the first of the declarations made in the Judge’s order of 19 December 2013 and substitute a declaration as follows:
On 13 May 2009, by the conduct recorded at sub-paragraph (ii) of paragraph 222 of the Court’s reasons for judgment of 5 December 2013 (“the Reasons”) the respondent engaged in unwelcome conduct of a sexual nature and thereby sexually harassed the applicant, in contravention of s 28B(6) of the Sex Discrimination Act 1984 (Cth) (“the Act”).
122 Otherwise, I would dismiss the appeal. I would hear from the parties as to costs.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 45 of 2024
NORTH, PAGONE AND WHITE JJ
12 august 2014
REASONS FOR JUDGMENT
NORTH AND PAGONE JJ
123 We have had the advantage of reading a draft of the judgment of White J and respectfully agree and adopt every aspect of his Honour’s reasons except those in respect of the characterisation of the function carried out at the Waterside Hotel on the night of 13 May 2009 in which his Honour took a different view from that taken by the judge at first instance.
124 The learned primary judge had concluded that the events at the Waterside Hotel fell within the definition of “workplace”. His Honour’s conclusions in this respect were:
227 The third incident on 13 May (recorded at (iii)) undoubtedly involved the making of unwelcome sexual advances, unwelcome requests for sexual favours and other unwelcome conduct of a sexual nature. A reasonable person would have anticipated that Ms Ewin would be offended, humiliated or intimidated, as indeed she was.
228 The conduct occurred at the Waterside Hotel across the road from the LLA office and immediately followed the sexual harassment which I have found occurred at the office. The conduct was part of the same course of sexual harassment which began in the office. The movement from the office to the Waterside Hotel was initiated by Mr Vergara as part of his sexual harassment of Ms Ewin in the office and was acceded to by Ms Ewin in reaction to that harassment at the office, in an endeavour to move to a safer place.
229 In that respect at least, the purpose of the attendance and thus the function there carried out was to deal with the sexual harassment which began at the workplace. It makes no difference to the existence of that function that Mr Vergara’s purpose was to enlarge the sexual harassment while Ms Ewin’s purpose was to diminish it.
230 For a place at which sexual harassment occurs to satisfy the statutory definition of “workplace”, the function carried out at that place needed to be “in connection with” Mr Vergara and Ms Ewin being workplace participants. The phrase “in connection with” used in the s 28B(7) definition of “workplace” is a phrase of wide import. The words require a mere relation between one thing and another and do not necessarily require a causal relationship between the two things: Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 at 479 (Wilcox J).
231 The relation between what Mr Vergara and Ms Ewin were doing at the Waterside Hotel and each being a workplace participant is established by the fact that the sexual harassment at the LLA office was workplace based harassment and that Ms Ewin and Mr Vergara moved to the Waterside Hotel to deal with that incident of harassment. Those matters establish a sufficient connection to the workplace to render the Waterside Hotel a “workplace” for the purposes of s 28B(6) during the course of Mr Vergara’s and Ms Ewin’s attendance at that place.
232 The fourth incident which occurred on 13 May (recorded at (iv)) involving Mr Vergara trying to kiss Ms Ewin in King Street after they left the Waterside Hotel also involved the making of an unwelcome sexual advance or other unwelcome conduct of a sexual nature. That conduct also formed part of the same course of conduct which began with the sexual harassment at the LLA office earlier that same evening. Having regard, in particular, to Ms Ewin’s prior rejection of Mr Vergara’s sexual advances, a reasonable person having regard to the circumstances would have anticipated that Ms Ewin would be offended, humiliated or intimidated. In my view, the place at which the conduct occurred had a sufficient workplace nexus and satisfied the statutory definition of “workplace” for the same reasons as those that pertain to the finding I have made in relation to the Waterside Hotel.
233 For those reasons, I am satisfied that in relation to the conduct dealt with in each of (ii), (iii) and (iv) of , Mr Vergara contravened s 28B(6) of the SD Act.
His Honour’s decision was based upon a construction of the definition of “workplace” as applicable to s 28B(6) which brought within the compass of a relevant workplace a place where both Mr Vergara and Ms Ewin were carrying out a function in connection with their being workplace participants. In that regard his Honour had found on the evidence that what had occurred at the Waterside Hotel was a continuation of the sexual harassment which had begun at the LLA office and that the two had moved to the Waterside Hotel “to deal with that incident of harassment”.
125 Section 28B(6) makes it unlawful for a workplace participant sexually to harass another workplace participant at “a place that is a workplace of both of those persons”. A workplace for these purposes is defined by s 28B(7) widely to include a place (itself intended to apply widely) where the workplace participant “carries out functions in connection with being a workplace participant”. The prohibition in s 28B(6), however, requires that it be a workplace of both workplace participants and, therefore, relevantly, that they are both at a place carrying out “functions in connection with being a workplace participant”.
126 His Honour at first instance concluded that the Waterside Hotel was a workplace of both Ms Ewin and Mr Vergara because they were there “to deal with the sexual harassment which had begun” at the office. Determining the function both were carrying out at that place on that occasion is to be determined objectively rather than by the subjective purpose of either workplace participant. It may be that the subjective motive of Mr Vergara was solely to importune Ms Ewin for sexual favours but what caused them to be there, as his Honour the primary judge found, was that the reason for being at the place was to deal at a safer place with the harassment which Mr Vergara had commenced at the office. A difficulty for that finding may have been that Ms Ewin did not say that expressly to Mr Vergara; however, there was ample evidence before his Honour of Ms Ewin rejecting Mr Vergara’s sexual advances and of having previously made it clear to him that she did not want those advances to continue and did not then (at the office) want to accept them. The evidence available to his Honour could not have supported a finding that Ms Ewin encouraged Mr Vergara at the office when she agreed to leave the office to go the Waterside Hotel. His Honour found at :
After commenting that he just wanted to see the view, Mr Vergara then walked over to turn the lights on and said, “I’ll only turn the lights on if you agree to come and talk to me about something. I want to tell you something”. Ms Ewin said her response to Mr Vergara was, “Fine, we will go to the hotel across the road”. She deposed that she was frightened and angry and frustrated and wanted to get out of there to somewhere safe where there were other people. Her evidence was that she suggested going to the Waterside Hotel and did so because there was a teller machine there and she wanted to take out money to give to Mr Vergara to stop him saying to her, “You owe me”.
His Honour later concluded at [222(ii)] that Ms Ewin had agreed to go with Mr Vergara to the hotel as “a result of being frightened and wanting to go to a safer place” after he had commenced sexual harassment of her at the office but, of course, neither her uncommunicated subjective state of mind nor his subjective state of mind can be determinative of what function the two were performing at the Waterside Hotel. However, and as his Honour found, her agreeing to go with him was not because she was accepting his advances. Mr Vergara could not, in the circumstances, have thought that she was acceding to his wishes. The objective conclusion drawn by his Honour was that the two were moving from the office because the hotel was a safer place. The way in which the harassment was being “dealt with” was by Ms Ewin removing herself from a place where she had little control to one where his advances could be controlled by the impact of third party gaze.
127 There can be no doubt that Mr Vergara’s motive in acting as he did was to importune Ms Ewin for sexual favours and that he, subjectively, had no interest or intention to deal with the unacceptable workplace relations which Ms Ewin sought to deal with. His Honour did not conclude otherwise, but rather, that whatever his subjective motive may have been, what was occurring was the continuation of Ms Ewin’s need and attempt to deal with the sexual harassment which had begun at the office. That conclusion was open on the evidence and on the terms of the relevant legislation. The provisions are not made to depend upon the subjective intention of the parties although subjective intention may be relevant to the proper characterisation of the objective functions being carried out. As his Honour the primary judge said at , however, it “makes no difference to the existence of that function that Mr Vergara’s purpose was to enlarge the sexual harassment while Ms Ewin’s purpose was to diminish it”. It was open to his Honour to conclude that a place may be the workplace of a participant in circumstances where one may be carrying out a function imposed by the other. His Honour accepted the evidence that Ms Ewin had made clear that she did not wish Mr Vergara’s advances and that the activities at the office and thereafter at the hotel were dealing with the working relationship which had been affected by Mr Vergara’s repeated sexual advances.
128 The appellant did not challenge his Honour’s findings of fact but rather, contended that the facts found could not amount to the carrying out by both Ms Ewin and Mr Vergara of functions in connection with being a workplace participant. The facts, as found, however were that Ms Ewin did not go to the Waterside Hotel in acceptance of Mr Vergara’s sexual advances but, on the contrary, because she wanted to deal with what she had repeatedly sought to discourage. The evidence of the commencement of the series of events made clear that Mr Vergara was seeking to have Ms Ewin change her reaction to him: it was not the continuation of a mutual relationship but the continuation of his attempts to importune her in the knowledge of her unwillingness to participate in the conduct he sought from her. In that regard his Honour had the benefit of hearing the whole of the evidence and of the impression which that evidence would have made upon him. It being open to his Honour to find, and there being no challenge to the facts found, that going to the Waterside Hotel was triggered by a need to deal with the resumption of Mr Vergara’s unwanted sexual advances, it was open for his Honour to hold that the function of both at that place was to deal with what had commenced at the workplace.
129 Accordingly we would also dismiss the appeal.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices North and Pagone.
Dated: 12 August 2014