Federal Court of Australia

Magar v Khan [2025] FCA 874

ORDERS

THE COURT ORDERS THAT:

1.    The parties confer and within 14 days or such other time as may be allowed, provide by email to the chambers of Justice Bromwich agreed or competing orders to give effect to these reasons as to declarations of contravention.

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

REASONS FOR JUDGMENT

BROMWICH J:

A. Introduction

1    By an amended originating application and amended statement of claim, the applicant, Ms Biplavi Jarga Magar, alleges that in the course of her employment by a fast food franchisee company, the respondent, the principal of the company, and also a senior employee, Mr Sher Khan, known as Sonny, sexually harassed her, harassed her on the ground of sex, and victimised her for complaining about his conduct, contrary to the Sex Discrimination Act 1984 (Cth) (SD Act). Such conduct is proscribed by s 28B(2) and (3) as to both forms of harassment, and by s 47A as to victimisation. She seeks declarations of contravention and damages (including aggravated damages), as well as interest and costs. Unless otherwise specified, all legislative references in these reasons are to provisions of the SD Act.

2    For convenience, I will refer to the allegations of sexual harassment and harassment on the ground of sex as the harassment allegations, and to the allegation of victimisation that arose because she had complained of Mr Khan’s conduct as the collateral victimisation allegation. This categorisation serves to emphasise that Ms Magar’s complaint about the conduct constituting the harassment allegations formed the foundation for the collateral victimisation allegation. Also, the evidence for the victimisation was substantially documentary in the form of correspondence threatening the bringing of a defamation proceeding. The assessment of that evidence was an exercise in characterisation in the context of the harassment evidence.

3    Ms Magar was employed by Mexicali Enterprises Pty Ltd, a company owned and controlled by Mr Khan, and which also employed him. Mexicali was a franchisee of Mad Mex Franchising Pty Ltd, a franchise chain of fast-food restaurants serving Mexican cuisine. Mexicali had a restaurant in a part of the Hills District in a shopping centre called Norwest Marketown. Mexicali’s restaurant is referred to as the Store in the pleadings, agreed facts, and evidence.

4    While some of the contextual conduct Ms Magar relies upon is alleged to have occurred during the full period of her employment between 7 September 2021 and 17 February 2023 (September 2021-February 2023 Employment Period), the alleged sexual harassment took place in a more limited period between mid-January and mid-February 2023.

5    Mr Khan denies any wrongdoing, not as a question of characterisation, but rather as a denial of any improper conduct, including a blanket denial of conduct which would undoubtedly be contravening sexual harassment if Ms Magar’s account is accepted to any substantial degree.

6    This Court has jurisdiction to entertain this proceeding because the necessary preconditions in s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) have been met:

(a)    on 22 December 2023, Ms Magar lodged a complaint with the Australian Human Rights Commission (AHRC) asserting breaches of the SD Act by Mexicali and Mr Khan; and

(b)    on 19 July 2024, the AHRC issued a certificate under s 46PH(2) of the AHRC Act, terminating the complaint.

7    There is no suggestion that this proceeding does not fall within the ambit of Ms Magar’s complaint to the AHRC, being a limitation on the extent of the jurisdiction bestowed on this Court by s 46PO(3) of the AHRC Act.

8    This proceeding was originally also brought against Mexicali, but that company went into liquidation. Understandably, no application was made by Ms Magar to maintain the proceeding against it given the futility of doing so. Correspondingly, alleged contraventions of the Fair Work Act 2009 (Cth) by reason of Mexicali’s alleged failure to pay employment entitlements, contained only in the amended statement of claim, were ultimately not pressed. Accordingly, the corresponding accessorial case against Mr Khan for that alleged conduct and the civil penalty aspect of the pleaded case both fell away. With that decision, the proceeding ended up being confined to the claims brought under the SD Act.

B. Overview

9    Ms Magar is a citizen of Nepal who has lawfully been in Australia since 2021 on either a student visa or a bridging visa. She was just under 21 years of age when she commenced employment with Mexicali, and not yet 23 when she ceased that employment. She started as a line worker at the Store on 7 September 2021. Six months later, on 20 March 2022, she was promoted to a shift supervisor or manager position. In that more senior position, her duties included serving customers, handling money, preparing food, conducting stocktakes, as well as training and supervising other employees. She also often gave directions and tasks to less experienced or less senior employees.

10    During the September 2021-February 2023 Employment Period, apart from Ms Magar and Mr Khan, the following people were also employed by Mexicali:

(a)    Mr Joao Conde (referred to as JC);

(b)    a male person called Maddy; and

(c)    a male person called Cesar.

11    Mr Khan, JC, Maddy and Cesar are referred to in Ms Magar’s amended statement of claim as the Group. Ms Magar and JC were both managers of the Store, and both reported to Mr Khan.

12    Ms Magar alleges that during the September 2021-February 2023 Employment Period, the Group used sexualised and sexually explicit language and descriptions in relation to female employees and customers, described as the Group Behaviour.

13    Ms Magar also alleges that throughout the September 2021-February 2023 Employment Period, mainly JC, but also Mr Khan in a more limited way, behaved in a way that was disrespectful to her and the position she occupied, in addition to being derogatory in relation to other women. Such behaviour included undermining Ms Magar’s managerial directions and dictating how she and other women should dress, described as the Managers’ Behaviour. Her evidence is that the conduct specifically directed towards her concerned her wearing skinny jeans, supposedly in breach of some dress code.

14    In addition to the Group Behaviour and the Managers’ Behaviour, which were alleged to have occurred over the September 2021-February 2023 Employment Period, Ms Magar alleges that a number of specific events took place in the last part of that period between mid-January and mid-February 2023. These events form the basis of the sexual harassment allegations. Success in proving any of these events to any marked degree means that liability for sexual harassment is established and relief must follow.

15    Ms Magar alleges that on 12 January 2023, Mr Khan responded to her attending work with a bruise-like mark on her neck, commonly referred to as a hickey, by asking sexualised and demeaning questions about how she got it and about her sexual behaviour both in relation to the hickey and more generally, described as the Hickey Incident. To the extent that the evidence proved this incident took place, it constituted the start of the most serious allegations. If proven, it represented an escalation of Mr Khan’s conduct.

16    Ms Magar also alleges that, between 12 January 2023 and 16 February 2023, Mr Khan regularly asked her intrusive questions and made comments of a sexual nature, referred to in the amended statement of claim as the Sexual Comments.

17    Ms Magar further alleges that on all five Sundays between mid-January and mid-February 2023, being 15 January 2023, 22 January 2023, 29 January 2023, 5 February 2023 and 12 February 2023, Mr Khan sexually harassed her in various ways while she was in or near his car, described collectively as the Car Incidents, and described individually as the First Car Incident through to the Fifth Car Incident.

18    The evidence adduced from Ms Magar fell short of disclosing the full detail and extent of the conduct that was pleaded, but the core and much of the substance of what she alleged was deposed to. That is, the evidence addressed an important subset of the detail of the conduct alleged by the pleadings. It is that somewhat more limited pool of evidence that requires careful examination and assessment, emerging from Ms Magar and Mr Khan’s examination in chief, cross-examination and re-examination.

19    Evidence relating to the Car Incidents also falls to be considered in the context of certain documentary evidence from both sides, and expert psychiatric evidence adduced by Ms Magar and tested in cross-examination by Mr Khan.

20    On 17 February 2023, five days after the Fifth Car Incident, Ms Magar was rostered for work. She did not go to work that day or subsequently. Any conduct after that date was not alleged to be contravening conduct in the sense of sexual harassment or harassment on the ground of sex, as it instead relates to Ms Magar’s collateral victimisation allegation and/or the issue of aggravated damages, flowing from what had transpired up to 12 February 2023.

21    The evidence from Ms Magar about the Car Incidents did not emerge with the same degree of delineation between each of them as alleged in the pleadings, and instead came out as conduct occurring in the period between 15 January and 12 February 2023. This was not as problematic as it might have been for two reasons:

(a)    First, the evidence was largely a subset of what was pleaded and did not contain any material changes in the sense of new allegations for which Mr Khan was not on notice. There was no denial of procedural fairness in this somewhat predictable evidentiary shortfall.

(b)    Second, Mr Khan blanketly denied that he engaged in any alleged conduct in or near his car at all, such that the lesser degree of delineation in the evidence compared to the pleading did not, for that additional reason, occasion any unfairness to him.

22    In any event, to the extent that there was any inconsistency between what was pleaded in relation to the Car Incidents and the evidence adduced, this was not squarely put to Ms Magar. I acknowledge that there may have been some difficulty in doing so, but much more could have been put to her than was. Some asserted inconsistencies were the subject of closing submissions for Mr Khan. His submissions in this respect were largely about the lower level of precision and detail in the evidence adduced compared to the written allegations in the amended statement of claim, leading to his argument that the evidence adduced should have less weight and probative value than a more detailed account. Mr Khan also advanced a number of more limited assertions of inconsistency. However, they were too slight or peripheral to be material and do not warrant being spelt out.

23    The events after Ms Magar ceased working at the Store are the subject of limited dispute and can be stated briefly.

24    On 18 April 2023, Ms Magar sent a LinkedIn message to Ms Emily van Wessem, the People and Culture Manager at Mad Mex, seeking to make a complaint about Mr Khan’s conduct (First Complaint). Ms van Wessem responded on the following day and scheduled a meeting with Ms Magar to discuss the First Complaint.

25    On 20 April 2023, Ms Magar spoke with Ms van Wessem on the phone who informed her that Ms Donna Dunwoody, the HR Manager at Mad Mex, would also be involved in the investigation.

26    On 28 April 2023, Ms Magar attended a videoconference with Ms van Wessem and Ms Dunwoody to discuss her sexual harassment allegations (Second Complaint). During this meeting, Ms Magar was told that the First Complaint and Second Complaint (together, the Complaints) would be kept confidential and, unless absolutely necessary, Mad Mex would keep her identity anonymous throughout the investigation process.

27    On 31 May 2023, Ms Magar, through her solicitor, sent an email to Mexicali stating that, during her employment:

Mad Mex, through the conduct of its employee Sonny Khan, subjected our client to serious, repeated and unlawful sexual harassment, harassment on the basis of sex, and discrimination on the basis of sex.

The email also requested a copy of Ms Magar’s employment contract, among other things, by 2 June 2023, so that Ms Magar’s solicitor could advise her on the available causes of action. No response was received by that time.

28    On 5 June 2023, Ms Dunwoody sent a letter to Mr Khan on behalf of Mad Mex, indicating that Mad Mex had concluded its investigation into the allegations of bullying, harassment and sexual harassment that were made by Ms Magar against him. Ms Magar was informed of the investigation’s finalisation on 31 May 2023, though not its outcome. On 6 June 2023, through a one-page letter from Ms Dunwoody sent on behalf of Mad Mex, Ms Magar was advised that “[a]s a result of the investigation, we substantiated some of the allegations that were made”, and as next steps, Mad Mex would be “separately communicating with Mr Khan” and “taking the appropriate actions in line with our Franchise Agreement and the Franchising Code of Conduct.”

29    On 6 June 2023, Mad Mex sent a “Notice to Remedy Breach of Franchise Agreement” to Mexicali and Mr Khan, which stated that it considered Mexicali had breached various Mad Mex policies and statutes, including the SD Act, and required him to take various actions to remedy the breaches set out in the letter to avoid the termination of the franchise agreement between Mad Mex, Mexicali and Mr Khan. That document is in evidence, but is subject to a direction I made under s 136 of the Evidence Act 1995 (Cth) limiting the use that could be made of it, so that it is not evidence of the truth of the factual assertions it contains.

30    On 8 June 2023, Ms Magar’s solicitor emailed the Mexicali email address again, though now addressing Mr Khan, and repeated the request for Ms Magar’s employment contract and other employment information.

31    On 21 June 2023, through his legal representatives, Mr Khan sent Ms Magar a concerns notice, purportedly in accordance with s 12A of the Defamation Act 2005 (NSW) (First Concerns Notice). The First Concerns Notice alleged that the Complaints were defamatory in nature and requested for Ms Magar to offer monetary compensation and an apology to Mr Khan, as well as to withdraw the imputations of concern. The First Concerns Notice also reserved Mr Khan’s right to commence legal proceedings if an offer was not made within 14 days.

32    On 3 July 2023, Ms Magar’s legal representatives informed Mr Khan that in accordance with the Defamation Act, he could not commence defamation proceedings until at least 28 days after the date of the First Concerns Notice.

33    On 14 July 2023, Ms Magar responded to the First Concerns Notice through her legal representatives, denying the defamatory nature of the Complaints and refusing to make an offer of amends. She also sought better and further particulars regarding the alleged imputations and denied that the First Concerns Notice was valid for the purposes of the Defamation Act.

34    On 28 July 2023, Mr Khan, through his legal representatives, withdrew the First Concerns Notice and issued Ms Magar with a further concerns notice, purportedly in compliance with s 12A of the Defamation Act (the Second Concerns Notice, together, the Concerns Notices). The Second Concerns Notice again requested for Ms Magar to provide an offer of amends to Mr Khan consisting of monetary compensation, an apology and the withdrawal of the imputations of concern.

35    On 25 or 28 August 2023 (an agreed statement of facts saying the former though the tendered letter was dated the latter), Ms Magar responded to the Second Concerns Notice via her legal representatives, largely repeating matters raised in response to the First Concerns Notice and denying that the Second Concerns Notice was a valid concerns notice for the purposes of the Defamation Act. Mr Khan did not respond to that letter.

36    On 22 December 2023, Ms Magar lodged a complaint with the AHRC asserting various breaches of the SD Act by Mexicali and Mr Khan. On 19 July 2024, the AHRC issued a certificate under s 46PH(2) of the AHRC Act.

37    On 17 September 2024, Ms Magar filed an originating application to commence this proceeding.

C. Legislation and case law

38    Ms Magar alleges that Mr Khan contravened s 47A, and s 28B(2) (3) of the SD Act. Sub-sections (2) and (3) of s 28B proscribe sexual harassment and harassment on the ground of sex in employment contexts, and s 47A contains the proscription against victimisation. I will briefly deal with each provision and their elements in turn, noting that the parties are not in dispute as to the applicable legal principles but rather their application to the facts and the facts themselves.

Subsection 28B(2) and 28B(3) of the SD Act – workplace nexus

39    Relevantly, s 28B provides:

s 28B    Employment, partnerships etc.

…

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

(3)    It is unlawful for a person conducting a business or undertaking to sexually harass, or harass on the ground of sex:

(a)    a worker in the business or undertaking; or

(b)    a person who is seeking to become a worker in the business or undertaking.

40    Given Mr Khan was the sole director and owner of Mexicali and worked alongside Ms Magar as the most senior employee during the period in which the alleged conduct took place, she claims that he contravened both subs 28B(2) and 28B(3) by engaging in various acts constituting sexual harassment and harassment on the ground of sex in relation to her.

41    Specifically, Ms Magar’s case is that the Group Behaviour and the Managers’ Behaviour constituted harassment on the ground of sex, and that the Hickey Incident, Sexual Comments and Car Incidents constituted sexual harassment. Those concepts are defined in ss 28A and 28AA, respectively.

42    It is important to note that s 28B should be broadly construed as it is a remedial provision which protects human rights: Ewin v Vergara (No 3) [2013] FCA 1311; 307 ALR 576 at [32] (Bromberg J). Ewin was upheld on appeal: Vergara v Ewin [2014] FCAFC 100; 223 FCR 151 (North, Pagone and White JJ). Furthermore, temporal considerations such as whether the harassment occurred during work hours or while the parties were working were not intended by the legislature to act as a restriction on the operation of s 28B: Ewin at [37] (Bromberg J). I return to Ewin later in these reasons.

Section 28A of the SD Act – meaning of sexual harassment

43    Section 28A sets out the meaning of sexual harassment for the purposes of the SD Act as follows:

(1)    For the purposes of this Act, 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 the possibility that the person harassed would be offended, humiliated or intimidated.

(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.

(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.

44    As Perram J observed in Hughes (t/as Beesley & Hughes Lawyers) v Hill [2020] FCAFC 126; 277 FCR 511 at [21]-[25] (Collier and Reeves JJ agreeing at [1] and [2] respectively), there are essentially three elements to the definition of sexual harassment in s 28A.

45    The first element of sexual harassment is that the Court is required to consider whether there has been any of the three identified forms of conduct, namely a sexual advance, a request for sexual favours, or other conduct of a sexual nature. This is a question of fact and “involves the application of a defined legal standard to the facts as found”: Hughes at [22].

46    As to the meaning of conduct of a sexual nature, regard must be had to s 28A(2) which provides that the term includes both oral and written statements of a sexual nature directed to or in the presence of a person. The meaning of the phrase “other unwelcome conduct of a sexual nature” and its broad construction was also discussed in Vitality Works Australia Pty Ltd v Yelda (No 2) [2021] NSWCA 147; 105 NSWLR 403 at [97] (Bell P and Payne JA, McCallum JA agreeing), albeit in the context of s 22A of the Anti-Discrimination Act 1977 (NSW), an analogue to s 28A of the SD Act:

… The phrase “other unwelcome conduct of a sexual nature” is not a term of art but, rather, an ordinary English expression in common usage. It is a term of broad import that should not be narrowly construed. The breadth of the conduct amounting to “other unwelcome conduct of a sexual nature” should not be read down or confined by reference to limits or restrictions which do not appear in the statute.

47    Given the similarities in the subject matter, purpose and text of the two provisions, their Honours’ observations are equally applicable in the present context. The same may be said for McCallum JA’s remarks in Vitality Works at [125] that:

… The suggestion that conduct cannot amount to sexual harassment unless it is sexually explicit overlooks the infinite subtlety of human interaction and the historical forces that have shaped the subordinate place of women in the workplace for centuries. The scope of the term “conduct of a sexual nature” in s 22A of the Anti-Discrimination Act is properly construed with an understanding of those matters.

48    In any event, Mr Khan’s stance of blanket denial as to the occurrence of the conduct described by Ms Magar, rather than a dispute as to the nature of his actions, meant that he did not attempt to characterise his alleged actions as being benign. The account that Ms Magar gave, if accepted, was of conduct of an explicitly sexual nature, in so far as it related to the Hickey Incident and the Car Incidents.

49    The second element of sexual harassment is that the identified form of conduct must be unwelcome to the person harassed. Whether the conduct may be characterised as unwelcome is a subjective test and is ordinarily proved by the person allegedly harassed giving evidence that the conduct was in fact unwelcome: Hughes at [23]. Despite this, a person experiencing harassment does not have to positively reject the sexual conduct or expressly inform the person that the conduct is unwelcome before the conduct can be characterised as unwelcome: San v Dirluck Pty Ltd [2005] FMCA 750; 222 ALR 91 at [23] (Raphael FM). Similarly, as Katzmann J pointed out in Taylor v August & Pemberton Pty Ltd [2023] FCA 1313; 328 IR 1 at [53]:

… the failure to make a contemporaneous complaint or to inform the alleged harasser at the time that the conduct in question is unwelcome does not (at least without more) signify the converse.

50    The third element of sexual harassment is that the circumstances in which the unwelcome conduct occurred must be such that a reasonable person would have anticipated the possibility that the person allegedly harassed would be offended, humiliated or intimidated by the conduct: Hughes at [24]. Section 28A(1A) provides a non-exhaustive list of circumstances to be considered for the purposes of subs (1) and includes the relationship between the person harassed and the person engaged in the conduct. This aspect is particularly important in the present proceeding, given the unbalanced relationship that existed between Ms Magar as an employee of Mexicali, and Mr Khan as the owner of Mexicali.

51    Unlike the first two elements, the third element examines the conduct and the circumstances through the objective lens of a reasonable person. In Hughes at [26], Perram J explained that for the purposes of determining whether the objective criterion is fulfilled:

… the reasonable person is assumed by the provision to have some knowledge of the personal qualities of the person harassed. The extent of the knowledge imputed to the reasonable person is a function of the “circumstances” which the provision requires be taken into account. Mention has already been made of the nature of the relationship between the harasser and the harassed. … the list in subs (1A) is merely inclusive so that other unspecified but relevant circumstances may also be taken into account. The canvas is broad.

52    Despite the wide range of circumstances that may be taken into account for the purposes of s 28A(1A), the intention of the alleged harasser is irrelevant. As Bell P and Payne JA explained in Vitality Works at [98]:

As to the subject matter, scope and purpose of the Anti-Discrimination Act, it cannot seriously be suggested that the subjective intention of the alleged perpetrator has anything to do with proof of the statutory prohibition. If it were otherwise, an important societal norm would rest on the subjective opinions of the putative sexual harasser. In effect, the greater the subjective tolerance of sexually inappropriate conduct on the part of the sexual harasser, the more difficult sexual harassment would be to prove. That conclusion needs only to be stated to be rejected.

Again, their Honours’ observations are equally applicable to the parallel provision in the SD Act.

53    In applying all of the principles outlined above, it will be appropriate to consider Ms Magar’s complex mental health history, including a period of hospitalisation for psychosis, given it was known to Mr Khan and contributed towards her vulnerability.

Section 28AA of the SD Act – meaning of harassment on the ground of sex

54    Section 28AA defines harassment on the ground of sex for the purposes of the SD Act as follows:

(1)    For the purposes of this Act, a person harasses another person (the person harassed) on the ground of sex if:

(a)    by reason of:

(i)    the sex of the person harassed; or

(ii)    a characteristic that appertains generally to persons of the sex of the person harassed; or

(iii)    a characteristic that is generally imputed to persons of the sex of the person harassed;

the person engages in unwelcome conduct of a demeaning nature in relation to the person harassed; and

(b)    the person does so in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

Note: See also section 8 (acts done for 2 or more reasons).

(2)    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 engaged in the conduct;

(c)    any disability of the person harassed;

(d)    any power imbalance in the relationship between the person harassed and the person who engaged in the conduct;

(e)    the seriousness of the conduct;

(f)    whether the conduct has been repeated;

(g)    any other relevant circumstance.

(3)    In this section:

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

55    Section 28AA was inserted by the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Cth), following a 2020 report by the Sex Discrimination Commissioner titled Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces. As explained in the Explanatory Memorandum to the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 at [130]:

The Respect@Work Report found that people may experience forms of harassing conduct based on their sex, but that is not necessarily sexual in nature. … the Sex Discrimination Commissioner recommended that this type of conduct is explicitly prohibited in the SD Act to ensure clarity for workers and employers as well as the broader community.

56    That historic context for this extension of the operation of the SD Act cannot lightly be put to one side, and caution is required in marginal cases.

57    The first element of harassment on the ground of sex requires a person to engage in conduct of a demeaning nature “in relation to” the person harassed for one of the reasons listed in s 28AA(1)(a). Conduct for the purposes of s 28AA includes both oral and written statements made to a person or in their presence: s 28AA(3). Although the conduct does not have to be directly addressed to the person harassed, some nexus is still required, in that the conduct must be in relation to the person harassed. This requirement is discussed in more detail below, when it comes to assessing whether the proven conduct went far enough to constitute a contravention.

58    Like sexual harassment, harassment on the ground of sex requires the identified conduct to be unwelcome to the complainant. The discussion above in relation to unwelcome conduct in the context of s 28A also applies to s 28AA. It bears repeating at this point that conduct cannot be characterised as other than unwelcome only because a complainant did not explicitly address the conduct or inform the perpetrator that it was unwelcome at the time.

59    Like s 28A(1), s 28AA(1)(b) requires an inquiry into whether a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated. As explained above, while this does not require an inquiry into the subjective intention of the alleged perpetrator or an assessment of what the harassed person would have anticipated, particular vulnerabilities of the harassed person are taken into account as part of the “circumstances” under s 28AA(2).

60    The considerations listed in s 28AA(2) are more extensive than those listed in 28A(1A). It expressly includes the relationship between the person harassed and the person who engaged in the conduct, as well as any power imbalance in that relationship. In this case, it is not in doubt that a significant power imbalance existed between Mr Khan and Ms Magar, caused by differences in their seniority, experience and influence over the operation of the workplace. As the director and Business Manager of Mexicali, Mr Khan controlled many aspects of Ms Magar’s work, including her roster and work hours.

61    In relation to other relevant circumstances, the Explanatory Memorandum explains at [151] that it may be relevant to consider “aspects of the environment or culture in which the conduct took place”, such as whether the workplace in which the conduct occurred was dominated by one sex. Ms Magar gave unchallenged evidence that there were “very few female employees” at the Store and “most of them were leaving” when she began working there.

Section 47A of the SD Act – victimisation

62    Section 47A(1) renders it unlawful for a person to commit an act of victimisation against another person. Pursuant to s 47A(2), a person commits an act of victimisation if they subject, or threaten to subject, another person to any detriment, because that person:

(a)    has made, or proposes to make, a complaint under this Act or the Australian Human Rights Commission Act 1986; or

(b)    has brought, or proposes to bring, proceedings under this Act or the Australian Human Rights Commission Act 1986 against any person; or

(c)    has given, or proposes to give, any information, or has produced, or proposes to produce, any documents to a person exercising or performing any power or function under this Act or the Australian Human Rights Commission Act 1986; or

(d)    has attended, or proposes to attend, a conference held under this Act or the Australian Human Rights Commission Act 1986; or

(e)    has appeared, or proposes to appear, as a witness in a proceeding under this Act or the Australian Human Rights Commission Act 1986; or

(f    has reasonably asserted, or proposes to assert, any rights of the person or the rights of any other person under this Act or the Australian Human Rights Commission Act 1986; or

(g)    has made an allegation that a person has done an act that is unlawful by reason of a provision of this Part (other than subsection (1)); or

(h)    has made an allegation that a person has contravened a provision of Part IIA;

or on the ground that the first person believes that the other person has done, or proposes to do, an act or thing referred to in any of paragraphs (a) to (h), inclusive.

(Emphasis added.)

63    The elements for a claim of victimisation were summarised by Raper J in Whelan v Oldfield Entertainment Pty Ltd [2024] FCA 193 at [21]:

… [the person committing an act of victimisation] must have subjected, or threatened to subject, [the other person] to a detriment. That detriment must be real and not trivial. There must be a causal connection between the detriment and one of the matters listed in ss 47A(2)(a)–(h) or 94(2)(a)–(h) of the SD Act, and the ground must be a substantial and operative factor. The connection cannot be made by a “mere temporal conjunction of events, by an incidental but non-causal relationship or by speculation”: Penhall-Jones v New South Wales [2007] FCA 925 at [85] …

64    Ms Magar relies on the ground in s 47A(2)(g). To succeed on this ground, she must prove first, that she was subjected to, or threatened to be subjected to, some form of detriment; and second, that the detriment was threatened or inflicted because she had made an allegation that Mr Khan engaged in acts that, by reason of the SD Act, were unlawful.

65    Mr Khan made an argument that s 47A relates only to complaints made to the AHRC and, as Ms Magar only made a complaint to the AHRC after receiving the Concerns Notices, she could not be said to have been victimised on the basis that they were sent. That is a misreading of s 47A(2), which includes but is not limited to AHRC complaints. It could not properly be in dispute that, under s 47A(2)(g), the allegations made by Ms Magar against Mr Khan “did not have to refer to or identify the provision of Pt II of the SD Act by which the conduct alleged was unlawful, but that as a matter of law each such allegation had to meet that description”: Hanson v Burston [2022] FCA 1234 at [129] (Bromwich J).

D. The harassment allegations

Overview of the testimonial party evidence and expert evidence

66    Ms Magar and Mr Khan gave all their testimonial evidence orally. Ms Magar also adduced expert evidence by way of a psychiatrist report from Dr Atsumi Fukui. Dr Fukui was cross-examined on her report.

67    This proceeding is very much a word against word case in relation to the majority of Ms Magar’s allegations and Mr Khan’s denials, and almost entirely so for the allegations constituting the Hickey Incident and the Car Incidents. Whether those allegations have been proven is largely dependent upon the assessment of Ms Magar’s and Mr Khan’s oral evidence, which was not corroborated to any significant degree by documentary or other evidence.

68    Neither side called any other witnesses from the Store. I decline to draw any adverse inference against either side for that decision, forensic or otherwise. The conclusion that failure to call any such witness would not have helped their respective cases was incapable of making any real difference in the particular circumstances of this case. That is because, apart from Ms Magar’s account of a generally sexist work environment, all of her evidence concerning the key allegations and the corresponding denials by Mr Khan concerned alleged interactions when no-one else was present.

69    Mr Khan argued that Ms Magar could have called witnesses to support her account. I am unable to accept that argument for the following reasons:

(a)    It was no part of Ms Magar’s case that anyone overheard the Hickey Incident, beyond her collateral allegation that Mr Khan commented upon her having a hickey in general terms to other staff.

(b)    Nor is it any part of Ms Magar’s case that anyone else was present during the Car Incidents, although there was some dispute as to whether anyone at the Store might have been able to see the two of them at the car had they been there together.

(c)    There is no suggestion that the car was close enough to the Store for there to have been any material observations in any event, much less any scope to hear or see what did or did not take place.

(d)    Mr Khan asserted that a male friend who had picked up Ms Magar after the Hickey Incident occurred would have been able to testify as to whether Mr Khan had asked Ms Magar whether the friend had given her the hickey, however Ms Magar’s evidence was not clear that the friend would have heard that comment, nor was any question to that effect put to her. A question put to her by Mr Khan’s solicitor in cross-examination about whether the friend would be giving evidence was withdrawn. I am not satisfied that there was any basis on which to conclude that this person could have corroborated her account.

(e)    Mr Khan also contended that a colleague Ms Magar said she talked to after one of the Car Incidents could have been called to give evidence. That conversation did not involve Ms Magar disclosing anything about the Car Incident in question.

70    In any event, any inference that any possible witness could not have assisted simply directs attention back to the evidence that was before me.

71    It follows that I am primarily called upon to determine whether Ms Magar’s account of what took place in relation to the Hickey Incident, Sexual Comments and the Car Incidents, as well as the Group Behaviour and the Managers’ Behaviour should be preferred to the denials by Mr Khan, to the point of being more probable than not, mostly by reference to their competing evidence.

Expert evidence of Dr Fukui

72    The evidentiary value of Dr Fukui’s report, as affected by the cross-examination and re-examination of her, foundationally depends upon the acceptance of the SD Act allegations made by Ms Magar and thus of the information about those events that she provided at a relatively short assessment interview, supported by consultation notes from six sessions she had with a treating psychologist, Mr Shalav Mehta, between early May and mid-June 2024. It is therefore evidence that mostly goes towards the issue of remedies.

73    Components of Dr Fukui’s evidence are also relevant to the assessment of aspects of Mr Khan’s case which alleged that Ms Magar was, by reason of a mental illness, unable to give reliable evidence as to the key events in the period from mid-January to mid-February 2023 (that is, the Hickey Incident, Sexual Comments and the Car Incidents). This aspect of Mr Khan’s case depends upon the rejection of Dr Fukui’s opinion that Ms Magar’s psychosis was confined to a singular episode some 12 months before the key alleged events took place and had not recurred. It is convenient to deal with this limited aspect of Dr Fukui’s evidence at the outset, as it has some bearing on both the evidence of Mr Khan and Ms Magar.

74    Dr Fukui considered that it was unlikely that Ms Magar’s recollection of the incidents between mid-January and mid-February 2023 was affected by psychosis, with her psychosis being limited to one episode that had fully remitted almost a year earlier. In cross-examination, Dr Fukui explained that psychosis can be limited to singular episodes, and only with repeated or prolonged episodes would a diagnosis like schizophrenia be considered. She said psychiatrists therefore use the language of “first episode psychosis” to describe a case like Ms Magar’s, and that it is an ordinary and precautionary approach that patients be prescribed with antipsychotic medication for 6 months to a year after experiencing their first psychotic episode. This is done in case the condition was more serious than had been able to be detected at the time it was first diagnosed.

75    Dr Fukui therefore rejected the suggestion that the prescription of antipsychotic medication to Ms Magar for a year after her January 2022 psychotic episode indicated that she had been experiencing longer-term psychosis. Dr Fukui noted that in this period, Ms Magar was under the care of a HeadSpace psychiatrist, and that if she had relapsed she would have been diagnosed accordingly. Dr Fukui said that the recommendation made by a HeadSpace psychiatrist to come off antipsychotic medication in January 2023 was a very strong indication that Ms Magar had not relapsed. Her knowledge of Ms Magar’s treatment by HeadSpace is based on Ms Magar’s account of it.

76    Far from rejecting Dr Fukui’s evidence, I accept it without reservation. I am comfortably satisfied, and positively persuaded, that on the balance of probabilities and beyond, Ms Magar’s testimony about Mr Khan’s conduct towards her in the period from mid-January to mid-February 2023 was not affected in any way by psychosis.

Evidence of Mr Khan

77    It is convenient to address Mr Khan’s evidence first, given its limited ambit on the factual issues in dispute.

78    Mr Khan is almost 62 years of age. He presents as someone who is not in good health. That impression was supported by his largely unchallenged evidence about a number of serious health conditions that he suffers from. I accept that he suffers from serious and continuing illnesses, some of which are deeply personal. He became upset when describing certain aspects of his medical conditions and I accept that this was genuine, and that he has been and continues to be significantly adversely affected by them. Only one aspect of his health needs to be addressed because of submissions made on his behalf when an objection was made upon the ground of relevance. It is not necessary to detail other aspects of his ill health further as they do not affect the assessment of the evidence going to the issues in dispute.

79    Several aspects of Mr Khan’s longstanding ill health has rendered him impotent. This evidence was advanced in an endeavour to support his denial of comments attributed to him by Ms Magar. Those comments revolved around Mr Khan allegedly sharing details about his sexual activities with his former wife and other women, including physical details about his sexual arousal. Although not explicitly put, it was suggested that he could not have been physically aroused, making it improbable that he would have made the comments as alleged. As this aspect of his evidence was challenged only on relevance, and not as to veracity, I take his medical evidence into account for that purpose.

80    The conclusion I reach is that a physical inability to carry out certain sexual acts does not necessarily, and does not in this case, provide any compelling basis for concluding that he did not talk about them as though they had really occurred. This conclusion is further strengthened if Ms Magar’s evidence in that respect is otherwise accepted. The reason is that boasting or bravado about fictional sexual exploits is notoriously an aspect of sexual harassment. It may even be a motivation for such harassment. I do not have to go that far. I simply conclude that any references by Mr Khan about sexual exploits as deposed to by Ms Magar, and which I accept as having been said, does not require or amount to any evidence that such exploits ever in fact took place.

81    It is also submitted on Mr Khan’s behalf that his various medical conditions rendered it unlikely, and even to a degree impossible, for him to have engaged in the conduct alleged. While I accept that Mr Khan’s medical conditions over a long period of time have been personally debilitating at times, I do not accept that they posed any impediment to him engaging in the conduct alleged by Ms Magar. The conduct alleged was mostly verbal, and to the extent it was said to have been physical in nature, it was neither protracted nor strenuous. He accepted in cross-examination that his medical conditions and treatments would not have prevented him from attending work on any of the days on which the Car Incidents were alleged to have occurred. That was despite evidence to the contrary that he had given in chief.

82    The substance of Mr Khan’s evidence as to the conduct he was alleged to have engaged in was neither lengthy nor particularly detailed. He emphatically denied the occurrence of any contravening conduct. In summary Mr Khan:

(a)    Denied that he, or a group of employees at the Store, had stood around making derogatory comments towards other staff members and customers.

(b)    Denied that he witnessed JC having any discussions with Ms Magar about her work attire, although he confirmed that JC had later informed him that Ms Magar had “worn a pair of jeans that was not part of the code of conduct or the employee handbook regarding uniform”.

(c)    Confirmed that on 12 January 2023, Ms Magar came into the Store with a hickey. However, he denied making any comments about the hickey to either Ms Magar or other employees at the Store. He also denied asking Ms Magar intrusive questions about her personal life or otherwise making comments of a sexual nature.

(d)    Explained that he normally took Sundays off from work and that if he did go to work, it “would have been for a very short period of time”. He stated that, in the period in which the Car Incidents were alleged to have occurred, his medical conditions and medical treatments that he had undergone meant he was very weak, and would not attend work for long.

(e)    Denied that he ever went to his car with Ms Magar for any reason between 12 January 2023 to 17 February 2023 and denied that she ever accompanied him to the Store’s mailbox in that period.

(f)    Denied that he ever owned an iPad or sex toys or that such items were ever in his car. He also denied touching Ms Magar with any sex toys or asking her any questions related to sex toys.

(g)    Denied that he ever showed Ms Magar pornographic videos or pictures or asked her to attend a massage parlour or hotel with him.

(h)    Denied that he asked Ms Magar questions of a sexual nature about her colleagues or made comments about his own sexual performance to her.

83    The emphatic nature of his denials in relation to the most serious allegations, namely the Car Incidents, can be seen in the following transcript extract from his evidence in chief, which repeats aspects of the above summary, but conveys the confined nature of that evidence:

Do you own an iPad?---No.

Have you ever owned an iPad?---No.

Do you own any sex toys?---Hell no.

You don’t own any vibrators, dildos?---Absolutely not, sir.

Do you keep a bag of sex toys in the boot of your car?---Not at all, sir, no.

Do you keep an iPad in the boot of your car?---No. I don’t own an iPad, so - - -

Have you ever shown Ms Magar pornographic videos or pictures on an iPad?---Absolutely not.

Did you ever suggest to Ms Magar that she attend a massage parlour with you?---Sir, I’ve never been to a massage parlour, so I’ve never suggested that to her.

Have you ever asked Ms Magar the question which of her colleagues would she like to fuck?---Absolutely no, sir.

Have you ever asked her how she masturbates?---No, sir.

Have you ever used a dildo or sex toy to touch her?---Absolutely not at all, no.

Have you brushed her thighs with a sex toy or any other - - -?---No, sir. No.

Have you ever told her about how you gave oral sex to your ex-wife?---No.

Have you ever asked her a question how much of the dildo she can take?---Once again, sir, no.

Have you ever had an ex-employee give you a massage?---No, sir. I hate people touching me.

Have you ever been to a massage parlour with an ex-employee?---No, not at all, sir.

Have you ever given oral sex to a masseuse?---Absolutely no, sir.

Have you ever asked Ms Magar to come to a hotel with you?---No, sir, not at all.

Have you ever given a list of the local hotels in the area during a conversation?---No.

84    I have balanced Mr Khan’s denials against Ms Magar’s evidence as to what he said and did, as detailed below. My conclusions in that regard are set out below in the course of considering her evidence. Given the nature of Mr Khan’s blanket denials, he did not advance a positive alternative evidentiary case to compete with Ms Magar’s version of events. That is, rather than considering two differing accounts, there is only the question of whether the events described in Ms Magar’s evidentiary account occurred, taking into account Mr Khan’s denials. As a result, the success of Ms Magar’s case depends upon acceptance of her evidence to the point of being satisfied that, on the balance of probabilities and having regard to the quality of evidence required for such serious allegations, the conduct of Mr Khan, and any conduct in his presence, as described in her evidence, did take place.

Evidence of Ms Magar

85    Ms Magar presented as a mostly calm and forthright young woman. She came across as somewhat naïve and unworldly, giving her a real sense of vulnerability. With the exception of giving evidence concerning her assertions of conduct which, if accepted, clearly amounted to sexual harassment, she was calm and clear. However, she plainly found giving that account distressing, becoming teary at times and needing a short adjournment at one early point. Some of her evidence about the most serious allegations was accompanied by tears and her voice became hesitant and nervous. Far from this reaction to describing what she said had occurred detracting from her evidence, it came across as being entirely genuine.

86    I found Ms Magar’s manner added to, rather than detracted from, the cogency of her evidence, lending some force and credibility to the account that she gave. I have remained alert to the exhortation given by the High Court in Fox v Percy [2003] HCA 22; 214 CLR 118 at [31] (Gleeson CJ, Gummow and Kirby JJ) that judges “limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events”: see Qantas Airways Ltd v Transport Workers' Union of Australia [2022] FCAFC 71; 292 FCR 34 at [205]-[206] (Bromberg , Rangiah and Bromwich JJ), describing the approach taken to credibility by the primary judge in that case, an approach I have applied to the evidence in this case.

87    As detailed below, Ms Magar’s evidence, supported by text messages in evidence, described a logical progression in her relationship with Mr Khan, in the sense that they became friendlier with each other over time. I am confident this progression emerged naturally from the evidence and was not constructed ex post facto by her.

88    To an extent the progression in their friendly relationship was corroborated by Mr Khan’s evidence and by the limited text messages in evidence, although he also described a deterioration in that relationship which was at odds with those text messages. His evidence is that he initially regarded her as a good worker. Later in his evidence he unconvincingly sought to recharacterise her work ethic as having deteriorated, despite this not being put to her.

89    The background evidence from Ms Magar, mostly consistent with Mr Khan’s evidence, was that she and he got on quite well in her first 12 months at the Store. He was supportive of her when she experienced a psychosis episode in early 2022, which included hospitalisation and her returning to see her family in Nepal. She experienced a sexist and to that extent sexualised workplace, which she tried to ignore because she perceived speaking up as being contrary to her interests. In the latter part of her period of employment, in mid-January 2023, she came to work one day with a hickey, which attracted unwelcome attention from Mr Khan (contrary to his account of having noticed it and not acknowledging it in any way). That then progressed into the conduct and comments forming the Car Incidents, as detailed below.

90    I did not have any occasion to doubt that Ms Magar was telling the truth about the conduct directed towards her by Mr Khan, or about any other aspect of her evidence. Although Mr Khan sought to challenge the truth of Ms Magar’s evidence at points during her cross-examination, any suggestions of dishonesty on her part were not central to his case. Rather, he sought to characterise what Ms Magar described as having taken place in her evidence as being the fictional product of genuine mental illness.

91    In closing submissions, Mr Khan, through his solicitor, attempted to suggest that while Ms Magar might have genuinely perceived the conduct and conversations as having taken place, they may have been the product of false beliefs arising out of distorted perceptions of reality. He did not go as far as making an outright assertion that Ms Magar was having delusions, but that was at least hinted at. At points, the suggestion seemed to be that Ms Magar’s history of mental illness and her experience of sexualised abuse at the hands of people other than Mr Khan had caused her to accuse him falsely of sexual harassment. As concluded above, I prefer Dr Fukui’s evidence in this respect and am satisfied that Ms Magar was not affected by psychosis beyond her singular episode in January 2022.

92    For completeness, there was a single occasion when it was put to Ms Magar in cross-examination that she was giving false evidence, but this was denied and this isolated suggestion was not repeated. Dishonesty on the part of Ms Magar was not any real part of Mr Khan’s case. There was a vague suggestion that for some reason to do with her visa, she had made the complaint, though this was never put to her directly. Ms Magar had been on a student visa at the time the events in question occurred, which later expired. She was on a bridging visa at the time she made the First Complaint to Mad Mex. The logic of an argument that she had reason to be dishonest because of her visa status was never made clear, but to the extent that Mr Khan’s case may be understood to rely upon any suggestion of dishonesty or falsehood in her evidence, whether from that exchange during cross-examination or otherwise, which was far from clear, I reject it. It follows that the only live issue was one of reliability and probative value as directly raised by Mr Khan’s case.

93    To the extent that there were any reliability issues with Ms Magar’s evidence, they manifested in the form of difficulty in recalling all the details of what was allegedly said and done by Mr Khan (as to which, I am necessarily confined to what was deposed to). This extended to particular times and dates, both in her evidence in chief and in cross-examination. It is important to note in this regard that the typewritten notes of Ms Magar’s psychologist, Mr Mehta, that were in evidence through Dr Fukui, her report, and her evidence in cross-examination, reveal that Ms Magar only became aware that Mr Khan’s conduct potentially constituted sexual harassment once she raised it with her prior treating psychiatrist, Dr Wu.

94    Importantly, Ms Magar did not place any reliance upon the contents of Mr Mehta’s notes to prove the occurrence of the alleged conduct. To a limited extent, Mr Khan relied on those notes to impeach her evidence. That included relying on a note in which she described the Car Incidents as occurring once or twice, whereas her evidence was that they occurred up to five times. I am not persuaded that that undermined the credibility of her account at trial, especially where she has had time since to consider the dates on which things occurred. I note that she denied saying this to Mr Mehta as well. The notes were used in another way to impeach her credibility, but that endeavour was a comprehensive failure. It involved interpretations of those notes that are so untenable as not to warrant reproduction or serious consideration.

95    Although the content of Ms Magar’s evidence was imprecise at times in relation to specific dates, times or events which occurred, I did not find her evidence to be unreliable. The memory difficulties that she encountered meant that aspects of her evidence were not as detailed as they might have been, had she taken contemporaneous notes from which she could refresh her memory. However, I consider that this went no further than requiring the quality of her evidence to be assessed as it emerged. The pleaded allegations were not relevant for that evaluative exercise, especially as those pleaded allegations were not put to her in any detail as part of the challenge to her evidence.

96    With the foregoing in mind, I turn to some of the detail in Ms Magar’s evidence. It is convenient to consider that evidence by reference to the categories of conduct identified, being the Group Behaviour and the Managers’ Behaviour; the Hickey Incident; the Sexual Comments and the Car Incidents. The following is largely confined to the parts of the evidence that the parties marked in highlight on my copy of the transcript as a quick and efficient way to identify what parts of the testimonial evidence were particularly relied upon.

The Group Behaviour and the Managers’ Behaviour

97    Ms Magar gave evidence that Mr Khan was a leading member of a group of staff at the Store, including JC, Cesar, and Maddy, whom she described as being “very bullying or, like, hostile towards the other employees”. She said that they used to “pass comments about past female employees as well as the customer they had that day, commenting on their body and their sexuality”. She described the sorts of comments that were made as follows, referring to comments made about female employees at the Store known as Fenna and Betty, and about customers:

They used to comment on the boobs, “Oh, look at – her boobs is falling out of the top. Like, do you remember Fenna? She used to take zucchini home.” And everybody used to burst out of laughing. And, like, they would be, “She really loved zucchini. Do you remember?” kind of thing. And then, like, there was another girl, Betty. She just trained there. And, like, I think she came in one day, like, with low cut top. Then, like, they were all laughing at, like, her boobs were falling out that day. “Do you remember that?” And, like, generally, like, if some customer comes in at leisurewear or, like, some tight clothes, like, they would go comment on, like, “See the camel toe” or, like, “See the ass she has” or “The boobs are falling out.” “Skanks” and “whore” – they used to call all types of name.

…

And do you recall what they said about Fenna in addition to that?---Yes. She is, like, very hard to work with. And then, like, they would make, like, sexual references, like, “Okay. She’s taking home zucchini because, like, she enjoys it, like, sexually”, and, like, just laugh about it.

98    Ms Magar did not suggest that this conduct was directed specifically to her, or even that she was part of the conversation, because she said in response to a question about how this made her feel, that:

I felt I need to be easy to work with. Otherwise, I’m not going to have a good time over there. And, like, I had to agree upon everything that they say, so that, like, I don’t have any hard time over there.

99    Her evidence was that Mr Khan participated in this behaviour and further, was the “leading one”.

100    The challenge to this evidence was simply to put to Ms Magar that it did not take place. This in turn relied upon accepting Mr Khan’s blanket and emphatic denials. Contrary to those denials, I found Ms Magar’s evidence to be not just truthful and reliable, but also evocative and compelling. I am comfortably satisfied that what she deposed to did take place, paying due regard to the seriousness of such a finding. The requirement to have regard to the seriousness of the allegations in assessing whether they have been proven has also been applied in the assessment of the balance of Ms Magar’s evidence.

101    The acceptance of such evidence may be seen to constitute a form of contextual support for the sexual harassment alleged to have taken place in Ms Magar’s last month or so at the Store, in the period from mid-January to mid-February 2023. While those alleged events also arise from Ms Magar’s evidence and are therefore not independent evidence, they are still potentially valuable in evaluating the logic and sequence of events as deposed to in the balance of her evidence to determine its probative value. Internal consistency and logic may properly be a component of the assessment of the veracity of an account of contested events.

102    If sexist conduct, either engaged in by Mr Khan, or in his presence, or apparently condoned by him, is established by credible evidence from Ms Magar, it may render the next level of conduct she also deposes to of sexual harassment more likely. That reasoning in turn assists in ensuring that any finding that a serious allegation has been established is supported by evidence of sufficient quality: s 140(2) of the Evidence Act 1995 (Cth), the statutory version of Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 at 361-362 (Dixon J).

103    The conclusion that I reach is that upon the basis of this proven conduct, which included the two most senior men at the Store, the culture at that workplace tolerated overt and outspoken sexist and boorish behaviour as both collective behaviour and individual behaviour. Through their conduct, the senior staff at the Store, including Mr Khan, fostered a workplace culture that was disinterested in preventing sexist conduct from taking place and was instead tolerant, or even conducive to its continuation. Such a workplace culture can have the effect of normalising sexualised behaviour towards women and foster an escalation into worse behaviour, such as a progression into sexual harassment.

104    The next question is whether such conduct can be legally characterised as harassment on the ground of sex in relation to Ms Magar, beyond being sexist and boorish behaviour. The argument in that respect was not forcefully put on Ms Magar’s behalf, and little in the way of submissions were advanced as to why that should be so. In response, Mr Khan did not address the definition of harassment on the ground of sex in s 28AA, but rather the parallel definition of sexual harassment in s 28A, which was not relied upon for this aspect of Ms Magar’s case.

105    Ms Magar contends, albeit somewhat faintly, that aspects of the Group Behaviour and the Managers’ Behaviour was itself capable of constituting harassment on the ground of sex, by reason of the breadth of the definition of that concept in s 28AA(1), considered in more detail below. However, that submission was never developed, which it needed to be given that there was no suggestion that the conduct was directed to Ms Magar herself, nor to any other woman present.

106    To the extent that parts of the conduct relied upon can be established, it is difficult to attribute them to any marked degree to Mr Khan. The evidence as to what he did was cast in somewhat general terms. Even if that problem could be surmounted, it is also difficult to characterise the conduct as having taken place in relation to Ms Magar, rather than in relation to other women, who were staff or customers at the Store. There is no suggestion that any of these women were present at the time that the conduct took place. However, I note that the breadth of conduct covered by s 28AA, and in particular the meaning of the phrase in relation to in that provision, have yet to be the subject of any prior detailed judicial consideration that I am aware of.

107    Ms Magar’s evidence does not contain any reference to her being harassed in the course of either the Group Behaviour or the Managers’ Behaviour, with the possible exception of comments being made about her wearing skinny jeans. The evidence in that regard was capable of being directed, still inappropriately, to work dress standards. In the far greater part, what she deposes to amounts to allegations of generally boorish and sexist behaviour by male staff at the Store, especially on the part of JC, but also by Mr Khan.

108    Upon carefully reading the text of s 28AA, and the Explanatory Memorandum that addressed it, I am unable to be satisfied that this proven conduct goes far enough to also be contravening conduct by reason of being harassment of Ms Magar on the ground of sex. What follows is an analysis unaided by Ms Magar’s submissions.

109    Both the text of s 28AA, and the explanation for introducing it, were concerned with extending the prohibition on sexual harassment to cover conduct which fell short of being sexual in nature, but went beyond constituting only discrimination on the ground of sex (which is how such conduct had sometimes been addressed in previous authorities, when able to be addressed in that way). By retaining the concept of a “person harassed”, the new proscription was still focussed on harassment, but of a broader nature. As with sexual harassment, the conduct constituting harassment on the ground of sex can be directed to the person harassed or be done in their presence, but it must still be in relation to that person.

110    While the concept of being “in relation to”, is wider than being “to” a person, the phrase still requires some nexus since “a court construing a statutory provision must strive to give meaning to every word of the provision”: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [71] (McHugh, Gummow, Kirby and Hayne JJ). Further, although phrases like “in relation to” are accepted to have a very wide meaning, they still require some “discernible and rational link” that is not “overly tenuous”: Technical Products Pty Ltd v State Government Insurance Office [1989] HCA 24; 167 CLR 45 at 47 (Brennan, Deane and Gaudron JJ) and 51 (Dawson J), noting that their Honours were discussing the ambit of “in respect of”, which is not materially different in scope from “in relation to”. There may be an argument as to why “in relation to” has a looser purpose in this context and should not be taken too literally, but I was not blessed with any such argument.

111    As already noted, the only feature of the alleged Managers’ Behaviour that might have constituted harassment on the ground of sex was the comments made to Ms Magar about her attire and body when she wore skinny jeans to work. However, her evidence was not clear enough for me to be satisfied that this went far enough to establish a contravention. Her evidence was that JC had told her that wearing skinny jeans was immodest and that she shouldn’t do so, and that he then told Mr Khan to take disciplinary action against her. Her evidence was that she found this comment offensive. She said that Mr Khan then asked her not to make JC uncomfortable or angry, in short, that she should comply with the direction. She did not say whether she was offended by that comment.

112    Further and in any event, Mr Khan was a step removed from JC’s comment, and did not appear to endorse it. On her account, he seemed to be asking Ms Magar to appease JC, to avoid escalating the issue. While that may not have been good management, particularly in the context of this workplace where sexist and sexual comments were commonplace, I do not consider Mr Khan’s conduct to rise to the level of harassment. JC’s direction, and Mr Khan’s reinforcing of it, may well have been discriminatory in the sense of requiring Ms Magar to observe dress standards that were not required of men, but that was not part of the case advanced.

113    Even if each of the above hurdles presented by the definition of harassment on the ground of sex in s 28AA can be overcome, or I am mistaken in the interpretation I have arrived at, the conduct is subsumed by the alleged sexual harassment conduct addressed next and does not add to the outcome. I am therefore unable to accept that the evidence of the Group Behaviour or the Managers’ Behaviour goes far enough to amount to harassment of Ms Magar on the ground of sex.

114    Similar conduct likely would have been harassment on the ground of sex if the demeaning comments and purported humour as to sexual activity by one or more of the men had been proven to be about, or otherwise directed at, Ms Magar, inevitably because she is a woman and thus upon the ground of her sex, given the nature and content of what was said. It would also have been of that character in relation to Fenna or Betty had there been evidence that either was present when the comments were made.

115    It might well have been of that character in relation to the comments about “boobs” falling out of clothing, referring both to employees and to customers, if any of them had been present. Such conduct only fell short of constituting harassment on the ground of sex because the necessary nexus had not been proved. That is, there was insufficient evidence to show that the conduct had happened in relation to the women referred to, in that it was not communicated directly (or indirectly) to them or in such a way that they were able to hear or perceive the alleged contravening conduct.

116    Despite not being satisfied that the Group Behaviour and the Managers’ Behaviour constituted harassment on the ground of sex for the purposes of s 28AA, this sort of conduct provided fertile ground for the escalation of poor behaviour, which eventually led to more serious conduct. The tolerance and normalisation of such attitudes allows me to more readily accept that more serious conduct was less inherently improbable, an important consideration when evaluating the quality of the evidence required to establish a serious contravention of this kind.

The Hickey Incident on 12 January 2023

117    Ms Magar described coming to work with a hickey on her neck on 12 January 2023. On her account, she retrieved 50 cent pieces received from the previous night from the safe and took them into the office to exchange them for different cash denominations with Mr Khan. She said that he pointed to the hickey and asked if she had enjoyed the night before, as well as questions about who she had met and if she got “banged”, thus asking whether she had sex with the person who had given her the hickey. She said she shook her head to say “no”. She described herself as being shocked about the question because it was so personal and said that she wanted to respond in a way to avoid the topic.

118    Ms Magar also said that Mr Khan came out of the office later on the same day to point out the hickey to new shift members, saying:

Did you see … Biplavi’s hickey? Like, I think she enjoyed the night. What do you think, kind of?

119    Ms Magar described her reaction to this as:

it kind of felt like I was inside a glass box and everybody was dehumanising me and humiliating me for my personal choices.

120    Mr Khan emphatically denied that any of this occurred. A line of questioning by his solicitor suggested that this could not have occurred, because the Store’s safe for cash was not located in his office. Ms Magar’s evidence in cross-examination was compelling:

(a)    the safe was located in the front of the store, underneath the cash register and contained change bags, full of different denominations;

(b)    regularly, when there was not enough cash of a particular denomination on hand to give change to customers, staff would exchange denominations from the safe with Mr Khan for different denominations;

(c)    Mr Khan would take these different denominations out of his wallet, not from a safe.

121    Ms Magar explained that this could be breaking down large denominations for smaller ones. In closing, Mr Khan’s solicitor argued that this amounted to an inconsistency, because her evidence was that on the occasion of the Hickey Incident, she was changing 50 cent pieces. That is to confuse her general explanation of how this sort of exchange would occur in the Store, with her evidence of what took place on this particular occasion.

122    Mr Khan did not present any alternative version beyond acknowledging that Ms Magar had attended work on that day with a hickey. His case was that nothing had taken place in response, which seems to me to be inherently unlikely, although not impossible. In that context, his denial required an assessment as to whether Ms Magar’s evidence should be accepted and an evaluation against the proscription in s 28B(2) as to an employee sexually harassing a fellow employee and that in s 28(3) as to a person conducting a business or undertaking sexually harassing a worker at such a business or undertaking, both of which applied to Mr Khan as a senior employee of, and the person conducting the business of, Mexicali. In light of my conclusion below about Ms Magar’s evidence, I am unable to accept Mr Khan’s denials.

123    I accept Ms Magar’s account of what happened on 12 January 2023. Specifically, I accept that Mr Khan asked Ms Magar whether she had had sex the night before with the person who gave her a hickey and further that, in her presence, he referred to the hickey in front of other staff, stating that he thought she “enjoyed” the night before and asking what they all thought. Such comments were able to be understood in context as a reference to her engaging in sexual activity, including, but going beyond, receiving the hickey. As such, these were plainly statements of a sexual nature directed to Ms Magar and to other staff about her and in her presence. Both referred to deeply personal aspects of her life, including any sexual activity. It was plainly conduct that was unwelcome, and it took place in circumstances in which any reasonable person would have anticipated that Ms Magar would in fact be offended or humiliated, easily passing the threshold of that being anticipated as a possibility. I have no doubt that Ms Magar was in fact both offended and humiliated. Although not necessary to establish liability, I readily infer that this was intended by Mr Khan, with no other reason having been suggested by him.

124    I am therefore satisfied that the Hickey Incident on 12 January 2023 has been proven by Ms Magar’s evidence, constituting two types of sexual harassment pursuant to s 28B(2) and (3) of the SD Act.

The Sexual Comments

125    While Ms Magar pleaded that sexual comments were made to and about her on subsequent occasions in the Store, essentially repeating those made by Mr Khan in the Hickey Incident, she did not give evidence to that effect. This alleged contravention was therefore not proven.

The Car Incidents

126    Ms Magar referred in evidence to being at work every Sunday as manager after the Hickey Incident. In the context of it being common ground that she ceased working at Mexicali after not turning up for her shift on Tuesday, 17 February 2023, the reference to Sundays included all five Sundays from 12 January 2023 until then, being 15 January 2023, 22 January 2023, 29 January 2023, 5 February 2023 and 12 February 2023. Her evidence blurred the distinction between those different days. I readily infer that there was not much to distinguish between those days, with the only stand out events being those where something memorable had taken place. On her account, the events that stood out were apparently memorable for bad reasons to do with what she said Mr Khan said and did.

127    The alleged incidents of sexual harassment took place in or near Mr Khan’s car. Ms Magar’s evidence was that he had asked her to accompany him to her car for different reasons. She could not recall why she was requested to come with him on each occasion, but said that at least one was because he had asked her to leave the Store to buy food supplies. She explained that from time to time, the Store ran out of supplies, and she would leave the Store to go to a Coles in Norwest with Mr Khan to purchase replacements. Her evidence was that when they were away from the Store, he would say that he had to put an item in, or get an item from, his car and ask her to accompany him. Her evidence related to Store supplies running out is therefore significant in the sense that if proven, it shows that Mr Khan had an opportunity to be alone with Ms Magar away from the Store and provides a cogent reason for Ms Magar to be with Mr Khan near his car. In her evidence, Ms Magar referred specifically to corn, which in the context of her other evidence and that of Mr Khan, I took to be a reference to corn chips.

128    Mr Khan’s evidence was that the Store rarely ran out of anything, but if it did, the products that were used were of a specialised nature and could not be obtained from an ordinary shop. That preferred position is all very well and good, but does not address what would happen if there is an immediate shortage to be met, relevantly on a Sunday, when the choice was likely between having an imperfect substitute and having nothing at all to replenish the shortfall. While doubtless it would always have been preferrable to obtain a specialised product from the Store’s designated supplier, I found Ms Magar’s account about the contrary happening on apparently short notice to be credible. Correspondingly, I did not find it credible that the Store would never have run out of anything, nor that it would never use a substitute, however imperfect, if that could be readily obtained in circumstances where the right product could not be obtained at all. I therefore prefer and accept Ms Magar’s account of the Store running out of necessary supplies from time to time and needing to find a replacement. That in turn supports the reason she gave for being with Mr Khan in his car, which is where the incidents of sexual harassment she deposed to took place.

129    Ms Magar’s evidence started with a degree of precision, arising from the identification of a date in the questions asked by her counsel immediately following the Hickey Incident on Thursday, 12 January 2023. Her evidence is better reproduced than summarised:

Now, after 12 January, did you return to work?---Yes, I did.

And do you recall what occurred in the days that followed 12 January?---Yes.

Can you explain to the court what occurred?---Yes. Every Sunday was, like, just me as a manager. So, like, that took place during that time. As I said before, on 29 January, there was not enough corn for that shift, so, like, I asked Mr Khan – I told him, just let him know. He took me to Coles, bought his some personal stuffs as well.

So can I just interrupt you there. So what you’re describing now – is it your evidence this occurred after 12 January? Is that right? And do you recall around what date that occurred?---I don’t know.

But from as best as you can recall, you say it occurred in the days after 12 January. Is that right? Thank you, Ms Magar. If you continue?---Yes. So, like, basically, he bought some personal stuffs as well. So, like, he asked me to go to the car with him, accompany him and, like, help him to put stuffs. I agreed to that. We went there. He asked about, like, “How was things going with that guy who gave hickey?” and – can I take a break.

130    It was at this point that the Court adjourned for about 10 minutes, with Ms Magar being visibly and audibly distressed. A short time later, Ms Magar resumed giving evidence, continuing to depose to events on 15 January 2023, and then on 22 January and 29 January 2023. The totality of the evidence as it emerged was clearer in Ms Magar’s own words than could be achieved in a summary. The key passages are largely self-evident. The transcript of the evidence over three pages was as follows, with date references emphasised in bold to isolate them:

MR MAHENDRA: Ms Magar, before the break, you were giving evidence about what occurred on 15 January 2023. As I understand it, you were recalling a conversation where the respondent was asking you about the person you had gone to the concert – do you recall giving that evidence?---Yes.

Can you – would you please continue your evidence as to what you can recall occurring that day?---Sure. He was asking about that person, then afterwards he was asking me about if I had tried golden girl [girl on girl] sex or, like, have I experiment anything, like, in college, and then he proceeded to, like, say some of the stuffs about, like, he has a porntap or something.

Can I just pause there. So this is part of a conversation. Insofar as what Mr Khan said to you, as best as you can recall, what did he say to you?---He said if I have ever tried golden girl [girl on girl] or watched the porn about it.

Watched porn about it. And what did you say in response to that?---I said no.

And do you recall if he said anything in response to you?---Like, yes, I – “you should loosen up a bit and, like, experiment out,” because these are my years to experiment it.

And what did you say in response to that?---I just shook my head and said no because I was shocked, and I was kind of freezing. Like, I was bolted to the ground. I couldn’t move or anything.

And after he said these things to you, did you say anything there?---No.

And can you tell me what occurred after this conversation?---And, like, he asked me to go back to store. I went back to store. I just wanted to get through the day. Yes.

And can you tell me, after that incident occurred, how did you feel?---I just didn’t wanted to think about it. I had compartmentalise it. So, like, I just didn’t thought about it and, like, I just stayed in my bed for the most part of the time and, like – yes.

Did you finish your shift that day?---Yes, I did.

And did you work the following day?---Yes, I did.

Can I just take you through to 22 January 2023. Do you recall whether you attended work that day?---Yes. I did attend my work.

And can you tell me, after that incident occurred, how did you feel?---I just didn’t wanted to think about it. I had compartmentalise it. So, like, I just didn’t thought about it and, like, I just stayed in my bed for the most part of the time and, like – yes.

Did you finish your shift that day?---Yes, I did.

And did you work the following day?---Yes, I did.

Can I just take you through to 22 January 2023. Do you recall whether you attended work that day?---Yes. I did attend my work.

And can you describe to the court what occurred that day?---I think there was no more corn chips to run for that day. So, like, basically, I told him there was no more corn chips, and he asked to accompany him to the Coles or, like, mailbox retrieve or something. And, like, I went with him. And then he again suggested that, like, we go to his car to get something or put something in it. So, like, I went along with him. And, like, he asked me to sit in front of his car and then close the door. I didn’t because I was feeling very hot, and he just closed my door and then, like, he came to the other side of the car and sat over there. And he had bought Coles back, and he was taking out something, and it was his iPad. And he just told me that, “This is my porn iPad.” And then he went through some screenshots from the porn website that he had taken. I don’t know if it’s the day or the – another day, but at some point he asked what my vulva looked like. And - - -

MR MAHENDRA: ..... what, sorry?---Vagina looked like. And he could tell from the face of the person what the vagina of that person really looked like. And he proceeded to type on “girl on girl massage” in Pornhub. And then he went through a lot of videos and asked me which one I wanted to see. And he played one of the videos, and he wanted me to watch it, but I was, like, turning my head around. I was, like, really not trying to see it or watch it. But he – he put it in my eye frame where I can watch, and I had to watch. Following that, like, he asked me what other colleagues of mine I would fuck, and started naming the colleagues, to which I answered, “No”, to all of them. But, like, I really didn’t wanted to answer at all. I was, like, having out-of-body experience where I was, like, floating and watching myself going through all of that. And - - -

In terms of the conversation you had with him where he was asking you about other colleagues, and as best as you can recall, can you tell the court what the conversation was?---Yes. He was, like, “Do you fuck JC – would you fuck JC?”

And what did you say in response?---I said, “No”. And then, “Would you fuck Misty?” I said, “No”, to that, as well. And, “Would you fuck Colby? He’s muscular” – or something like that – “and he is young, as well.” I said, “No”, to that. And then there was Ishan and Thalia and Ava. Those were, like, underage people. They were, like, 13/14. So, like, he was asking me if I would fuck them. I did reminded him, like, they were underage, so, like, I would never think of that. And at the same time, like, they were my brothers and sisters, like, kind of felt like that because they were younger than me. And, yes, I did tell him that.

And did Mr Khan say anything in response to you saying they’re under 18, or they’re like your brothers or sisters?---I don’t recall.

Do you recall how the conversation ended?---I was like, “No.” I don’t recall, exactly. But, like, it was Sunday, so, like, there used to be, like, less people at the opening. So, like, it’s always three people, including me. So, like, yes. I ..... wanted to rush back to the store because, like, they were, like, underage people working alone. So, like, yes.

And did you return to the store?---Yes, I did.

And when you returned to the store, did you continue working?---Yes. I did continue working.

And did you have any discussion with Mr Khan after this incident occurred?---Yes. He was, like – I don’t know, he was feeling ashamed or what, but, like, he did told me, “I feel ashamed for that. Like, I won’t do it again. Like, don’t tell anyone. This will be our little secret, kind of the thing.” I was like, “Okay, but, please, don’t it again because it makes me very uncomfortable.”

And how did you feel after what occurred that day?---I was just putting this back to, like, where I couldn’t reach, like, back in my head. I was, like – I don’t know. I just stayed in my bed and, like, stared at the ceiling throughout the time, like – yes, as soon as I reach, nothing more or nothing less.

Did you return to work after - - -?---Yes, I did.

- - - 22 January?---Yes.

And can I then take you to 29 January 2023. Did you attend work that day?---Yes.

And can you explain to the court what, if anything occurred that day?---I’m not sure why, but I was in – in his car or – like, at least I was there, near his car, and then, like, he asked me to sit at the back of his car, and he shut my door and then, like, he went to retrieve something from the back. I think it was about – like, he was telling me some books, because I was really interested in books. So, like, he was telling some topics, and I did tell him, “I’ve already read those books and, like, I’m not interested in the genre that book was.” So, like, I did tell him, but he kept on insisting. So, like, I was there, and he was like, “You can go through the magazine. It’s over there,” kind of, and he was retrieving something from the boot, and when he came back, there was a Coles bag, but, like, inside I could still hear some plastic crunching. And he came and sat over there. He opened the plastic, and after that, like, one by one, he took out some sex toys, dildos, vibrators, things like that. I do remember smelling – I don’t know what’s that smell, but, like, I just wanted to vomit. And then he told, like, “This is not the usual one that I use on my skank or, like, my whores, but, like, these are the new ones, so you can touch it if you want to.”

Now, in terms of the conversation that was occurring that day, do you recall what was said?---It was like, “Are you wet from watching this dildo or, like, how do you masturbate? Do you masturbate by using your fingers or just simulating your clit?” And he did suggest to me – like, I don’t remember – fully remember, but, like, how to masturbate, basically, and he did wet the dildo and, like, make me touch it. He touched my inner thighs, like, with that dildo and vibrators and asking me how it felt, I was any wet or, like, my vagina was wet or something like that, and how much I can take the dildo, like, how large it is from – and insinuating, like, “This large as my dildo – like, this dildo this large as my penis,” something, it would reach to this area. He was touching my back and showing me, like, where would the dildo reach or his – and then he was telling me, like, how he gives oral sex to his, like, ex-wife, and, like, she likes it because his hair was long so, like – yes. Like, she would, like, imagine he was a girl going down on her. He didn’t mention the massage place where he used to go and what he does with them. Yes. I think that’s all I remember.

And what were you doing in response to all of this?---I was frozen in that seat. I wanted to run away, like, a lot. But my body was not volunteering to my thoughts or any of the things. A lot of thoughts were running. I could say nothing more than no to the answer or just sit there. Yes.

131    At this point, counsel for Ms Magar tried to ascertain how she was able to say that the events that she deposed to had occurred on particular days. The best that she could say was that the events all occurred on Sundays in that time period, that is, between the first Sunday after the Hickey Incident, being 15 January 2023 and the last Sunday before she ceased work at the Store, being 12 February 2023. It is therefore readily apparent that Ms Magar had a clearer memory of the contents of what occurred, rather than the particular dates upon which she said the events happened. While this is a reason to approach her evidence with care and caution, the lack of precision in recalling specific dates does not render her evidence as being necessarily unreliable, nor the events deposed to as being questionable.

132    Ms Magar did give evidence, however, as to what was distinctive about Sunday shifts, namely, that the Store was quieter on those days. She said that she was the only manager who would work Sundays in the relevant time period, and the other staff members “were like young, under-aged people, so like there was no one to question or no one to do any of the stuff.” That was broadly corroborated by Mr Khan’s evidence, to the effect that fewer staff were rostered on for Sunday shifts than other days, because penalty rates applied and the Store was not busy on Sundays. I find that evidence renders Ms Magar’s account of what occurred on those days more plausible, as fewer staff around created more of an opportunity for Ms Khan’s conduct.

133    The transcript can only go so far in conveying not just what was said, but the way in which it was said. Ms Magar was clearly upset when giving this evidence. She spoke softly and sometimes hesitantly. She was calm and measured. I found this evidence compelling and believable. I accept her evidence and correspondingly reject Mr Khan’s denials.

134    Ms Magar did not give specific evidence about the two remaining Sundays in that period, being 5 February 2023 and 12 February 2023. However, she did give evidence about further events on one or more Sundays in that period, as follows:

MR MAHENDRA: In terms of the Sundays that existed around that time – so you’ve given evidence as to what occurred on what you can recall occurring on 15 January. Again, is this something where you remember the specific date, or is it simply it was Sunday around that time?---It was Sundays around that time.

And does that go the same for what you say occurred on 22 January?---Yes.

And then you’ve just relayed what you say occurred on the 29 January, being a Sunday around that time; is that right?---Yes, that’s correct.

If we’re looking at Sundays around that time, do you recall anything else occurring on a Sunday at or around that time, in terms of you attending work and an incident occurring?---Yes. Like, from the very start, like, he would tell about the other employees – what they used to do to him.

Sorry, and this occurred on the day you attended work on a Sunday around this period of time; is that right?---Yes, that’s correct.

So can you just explain what occurred on this day that you can – as best as you can recall. You attended work; is that right?---Yes.

And Mr Khan was present at work?---Yes.

And what occurred that day?---He used to tell, like, what his ex-employees used to do to him. They used to give him massages after the operation. One of the female employee was, like – I don’t know, her bottom was, like, creasing on his, like, penis. And, like, they used to talk dirty, and he used to have pre-cum on his undies. And, like, he used to take photos and send it to that employee because the employee asked. And, like, they used to go to massage parlours together, and he used to tell what acts he did. Like, he used to eat out those masseuse and, like, even used dildos, and then he suggested that, like, I go with him one day.

Where was this conversation occurring?---In his car.

..... So this is a different Sunday where you ended up in his car again; is that right? And on this particular Sunday, do you recall how it is that you ended up in his car?---I don’t recall exactly.

And, on this particular Sunday, you say that he was talking about other employees and what he would do – what he used to do with ..... Do you recall the conversation happening?---Yes.

And what did he say to you?---Like, regarding other employees?

Yes?---Yes, it was his ex-employees, which I never met them – or, like, heard the names of. He used to tell like what he used to do with them, what they used to do to him.

And what did you say in response to that?---I didn’t respond at all.

Didn’t respond at all. How did you feel when he was talking about this?---I don’t know. I felt like he was implying – or, like, wanted me to do the same things, or, like, he was at least suggesting.

And how did this conversation end? Can you recall that?---Yes. He said, like, “I have pre-cum all over my undies, so, like, I need to go to washroom to, like, clean it up. You should go back to the store.”

I want to take you forward now to Sunday following 5 February. So going to the 12 February, now. Did you attend work that day on the 12 February?---I did.

And was Mr Khan present .....?---Yes.

And what do you recall occurring on 12 February?---I don’t recall much. Like, the thing that I recall is I was in his car, basically at the front seat, and he was basically suggesting me that, like, he’s going to pay me for the hours that I’m in the massage parlour. Like, we should go, like, because that would offer some privacy, as we were always in his car. So, like, there were peoples walking around, so, like, he wanted more privacy. What I should wear when I was in that hotel. He would assure me that, like, “Oh, I won’t fuck you because, like, you are too young. You are early 20s. If you were, like, 30, like, maybe I would have considered, but, like, don’t worry, we will just go and watch porn. Nothing more”. I should wear biker shorts or something.

Sorry, did you say bike shorts?---Yes.

So he said you should wear bike shorts; is that right?---What was the conversation that was occurring at this time?---At this time, you wanted to go to hotel.

And what did you say in response to that?---I didn’t want it. I said no. I was shocked.

And what was his response to you saying no?---He listed out numerous numbers of hotels around that area where we could go. Then he told me we could go after my shift or, like, the day when – the day I had off from the work, he would pay me, like, for the massage as well as for the time – hours that we will spend on the massage. I could try anything with the masseuse if I wanted to. It was all up to me, but what he actually did, like, with the masseuse, like, to what extent I could go – he was suggesting that.

And did he say anything else to you during that – towards the end of the conversation, that you can recall?---I think I had my phone with me because, like, I usually have it, and, like, he was, like, making sure that I wasn’t recording him. Making sure that, if I was recording him, then, like, he would lose everything.

So he said to you – I withdraw that. What do you recall him saying to you?---Like, if I was recording on my phone. If I was recording on my phone, then, like, he would lose everything.

Did he say anything else to you after that?---I said, “No, I’m not recording. It’s just my phone in my hand.”

And how did the conversation end?---He just pleaded and, like, I think, talked about his health or something like that. And then like I went to store. He asked me to go back to store. “If someone asks something, tell, like, you’re feeling unwell. That’s why, like, you were in the bathroom”. And, like, ask, “Where is he?” so that, like, they would know that we were not together. And I did - - -

And - - -?--- - - - according to that.

Sorry, you go ahead. Sorry, Ms Magar, I interrupted you. You go ahead?---And – yes. I did that. Like, whatever he told me. Like – yes. I just act it out in the store.

135    Ms Magar then gave evidence about working on the Monday, Tuesday and Wednesday after 12 February 2023, that is, 13 to 15 February 2023, and of trying to go to work on Friday, 17 February but being unable to get off the bus, and thereafter never returning to work. Her evidence about that day is an evocative account of how she had been affected by what she said Mr Khan had said and done:

After that, it was Mondays and Tuesdays, Wednesdays, so, like, I did went to work and did my work. But, like, on 17 February, like, I don’t know why; I couldn’t get out of the bus. It was like I knew something much more bad could happen, and, like, I was thinking, like, “Okay. Maybe I will be pressured to go to the hotel”, because, like, it was being bought up, like, from the very beginning. So, like, I really didn’t want it to. So, like, when the bus stopped at the bus stop, like, where I should have gotten off, I didn’t; I just stayed there and watched the bus stop pass by, and, like, I came back home.

So, during the week, was Mr Khan present at work?---Yes, he was.

So what was the difference between during the week, as opposed to leading up to the weekend?---During the week, there used to be other managers and other employees, like Amit, JC. So, like, they were the ones following him around, going, like – going to retrieve mailbox or, like, going to the banks or calls. Like, they used to be the one. And then, like, during the weekend it was just me and other two employees. Like, one was Narine who – he was a cook, and another was Ishan, who was under-aged, 14-year-old.

Now, you’ve just given evidence that, on 17 February, you couldn’t physically – you couldn’t get off the bus. And can I just ask a couple of questions about that? So, after 12 February, can you explain to the court how that incident made you feel?---After 12 February, I just didn’t felt I was inside a body; I was just like watching all along happening all of the stuffs, and, honestly, I didn’t wanted to recall or remember any of the stuffs. I just wanted to feel like that never happened. But the thing was, like, I don’t know why my body used to respond – something else. Like, I just used to stay in the bed, like, nothing to it. Like, even to go to the bathroom, like, I wouldn’t, like, unless it was too late for me to go, and it felt me like I wasn’t human enough. I felt humiliated. I felt powerless and helpless. Like, I didn’t know whom to talk to or what to talk about.

And so, on 17 February, you were scheduled to start at 9 am; is that right?---That’s correct.

But you gave evidence that you physically couldn’t get off the bus. Can you just explain how you were feeling on that day?---Yes. I was on my usual seat on the bus because, like, I had to take it every day – almost every day. So, like, I could see this station, and, like, in my brain, like, a lot of thoughts were racing, and, like, I was saying to myself, “Okay. You need to get off. Like, it’s your time to start. Come on. Get off. Get off.” But, like, I physically couldn’t move any part of my body. Like, I was just stuck there, and, like, I tried to convince myself, like – yes, talking nicely or talking rudely with myself, but, like, I couldn’t at all.

And did you return to work after 17 February?---No.

136    I accept Ms Magar’s account reproduced above as to what happened on 15, 22 and 29 January 2023, and also the latter part which I interpret as referring to 5 February or 12 February 2023, or possibly both. Unlike the Hickey Incident, the transcript reproduced above does not require any interpretation to understand what is being conveyed. The sexual nature of what was being said and done is plain and obvious.

137    In light of Mr Khan’s evidence about his sexual incapacity, which I accept, what he said about his own sexual exploits might be understood now as being at least exaggerated and perhaps fictitious. It is hard to reach any concluded view about this, partly because this was not clearly addressed in either Mr Khan’s evidence or in the submissions made on his behalf. It seemed to be suggested during his examination in chief that Mr Khan could not maintain an erection, which, if so, rules out certain sexual acts that he relayed to Ms Magar as having performed. Mr Khan’s evidence was that he did not have a sex drive, but there was nothing to suggest that he could not engage in other acts of a sexual nature that did not require a sex drive. His boasting to Ms Magar about his exploits included describing acts which did not require him to perform sexually in a way that the medical conditions he described precluded, such as using sex toys or performing oral sex.

138    Ironically, when considered in light of Mr Khan’s evidence, this feature of Ms Magar’s evidence renders her account more plausible. It is telling that nothing that she relayed contained any request or even overt suggestion of sexual activity by Mr Khan between him and her. She did infer that that might have been what he was getting at, and without the benefit of the evidence he gave as to his impotence, that might have been a reasonable inference to draw. Had she given any account of him making a sexual advance or a request for sexual favours, the improbability of that would have been revealed by the unchallenged evidence he gave about his medical condition, albeit that it was not given by any doctor and something was sought to be made about that by Ms Magar’s counsel. But as it emerged, her evidence was consistent with the evidence of his incapacity. There is no suggestion that she was made aware of his condition, and it is inherently unlikely that he would have told her or others at the Store. That is, his evidence as to that incapacity aligns better with the account that she gave than it would have had she deposed to him going further.

139    Mr Khan also, through his solicitor in cross-examination and closing submissions, made a number of collateral challenges to Ms Magar’s account. He argued that:

(a)    he would not have parked his car where she said it was located when the Car Incidents took place;

(b)    it was not plausible that they would leave young members of staff alone in the Store for an extended period;

(c)    it was not plausible that she would continue coming to Mr Khan’s car after the First Car Incident, or at least would have needed a good reason to do so that she should remember; and

(d)    it was not plausible that she would continue coming into the Store for work if Mr Khan had acted in the way she alleged he had.

140    I do not accept any of those contentions.

141    With the respect to the last argument, even a perfunctory understanding of the experience of sexual harassment in the workplace would indicate that there are a number of reasons why a person might continue coming into work after a traumatic experience had occurred there. To start with the most obvious: to earn a livelihood. Ms Magar’s account that she was essentially in a state of shock in this period, where she was unable to fully process what had occurred, is entirely plausible. She had experienced a positive relationship with Mr Khan, which was likely to be particularly important for a young woman, with no family support in Australia, who had experienced significant mental health problems in the near past. This man was now using his position of authority to engage in unwelcome sexual conduct, and employment by his company was her source of income. In any event, Ms Magar did stop working soon after the Car Incidents, with her fear of the continuation of Mr Khan’s conduct culminating in her inability to get off the bus on 17 February 2023.

142    Similarly, I do not consider that Mr Khan needed to have given some exceptional reason to ask her to the car. He was her superior, and she was unlikely to have felt like she could say no. That she does not recall why she went to the car on each occasion reflects a very ordinary imperfection in recollection, where incidents that are upsetting and shocking can be recalled with ease, while incidental details cannot.

143    I also reject Mr Khan’s challenges based on the inconsistency between Ms Magar and Mr Khan’s accounts of where his car was parked. His evidence was that he would park across the road from the Store on Sundays, in short-term parking, because the Norwest carpark was full due to a nearby HillSong (Church) holding services on that day. He submitted that he would not have had enough time to do what she said he had done, and that the car was in an exposed area. Because of the nature of most of the harassment, I do not consider it likely that it would matter if the car was parked in an exposed area. Talking to someone and showing them a tablet would be innocuous for any passersby. Even showing another person sex toys in the car could be done discreetly, particularly if the concern was that people in the Store nearby would see. Her evidence did not require finding that they were in the car for long, and indeed her descriptions suggest that each Car Incident was relatively brief. Her evidence was that the car was in a parking lot, near a garbage dumping area. Even if that were incorrect, that is a peripheral detail that I do not consider affects the credibility of her core account.

144    I also reject Mr Khan’s challenge that it was unlikely that he and Ms Magar would leave the Store because (on her evidence) often the only other people working on Sundays were minors. While that might have been imprudent, I am not persuaded that it renders her account implausible. In any case, the impression I had formed on the basis of other evidence accepted was that Mr Khan often operated the store in an imprudent manner.

145    The content of Ms Magar’s evidence in relation to the Car Incidents makes it relatively easy to be satisfied that the conduct amounted to sexual harassment of the kind described in s 28A(1)(b). Mr Khan’s actions on each of the occasions she deposed to included him making statements of a sexual nature to her which were plainly not welcome in any way. The circumstances in which this took place are such that any reasonable person would have anticipated the possibility – indeed virtual certainty – that Ms Magar as the person harassed would have been offended, humiliated or intimidated. This was heightened by characteristics of Ms Magar that were known to Mr Khan, including: that she was a migrant with no family in Australia, that she suffered from mental health problems, that he owned the company that employed her, that she was 22 years old and that he was significantly older. I note, however, that even lacking those characteristics, a reasonable person would have anticipated offence, humiliation and intimidation. Such was the seriousness of Mr Khan’s conduct. Although not necessary for liability, it seems clear enough that Ms Magar was in fact offended, humiliated and intimidated, the last being evident from her description of why she felt unable to return to work.

146    I am therefore satisfied that Ms Magar’s allegations of sexual harassment arising from the Car Incidents on at least four of the five Sundays from 15 January 2023 to 12 February 2023 have been proven, again paying due regard to the seriousness of these allegations.

Conclusions on the harassment allegations

147    For the reasons set out above in the course of assessing the evidence:

(a)    In relation to the Group Behaviour and the Managers’ Behaviour, I find that they did not constitute harassment of Ms Magar on the ground of sex within the meaning of s 28AA, but only because the conduct did not occur in relation to her. Accordingly, that aspect of Ms Magar’s case does not succeed.

(b)    In relation to the Sexual Comments, there was no evidence to support that allegation. That aspect of Ms Magar’s case therefore did not succeed.

(c)    In relation to the Hickey Incident and at least four of the five Car Incidents, I find that the conduct of Mr Khan constituted sexual harassment of Ms Magar within the meaning of s 28A. As a result, I find that Mr Khan contravened s 28B(2) and (3).

E. The collateral victimisation allegation

148    The collateral victimisation allegation was articulated with less clarity than the harassment allegations. Much of the evidence related to victimisation also related to the claim for aggravated damages, discussed below, given it was formulated as an alternative to the victimisation claim.

149    Ms Magar claims that she was victimised by Mr Khan after she continued to pursue her complaint following the conclusion of the internal investigation by Mad Mex. While not explicitly articulated in the Complaints to Mad Mex, the references to sexual harassment and harassment on the ground of sex in the email her solicitor sent to Mr Khan and Mexicali made clear that Ms Magar was making an allegation that Mr Khan acted unlawfully by reason of s 28B read with ss 28A and 28AA. The Complaints made to Mad Mex (in particular the Second Complaint, which is described in detail First Concerns Notice) also disclose the central factual allegations that underpin the harassment allegations. As such, Ms Magar contends that she has been victimised by Mr Khan because, via his solicitor, he sent the Concerns Notices in response to her decision to complain further about his unlawful behaviour. Mr Khan denies this causal connection and offers a different rationale for sending the Concerns Notices.

150    The first question is whether the Concerns Notices, the threat of litigation associated with those notices and any hurt feelings they caused to Ms Magar would amount to detriment for the purposes of s 47A. In this respect, Ms Magar relied upon the psychiatric report by Dr Fukui, which described the impact of the Concerns Notices as follows:

Ms Jarga Magar receiving two concerns notices from Mr Khan’s solicitors alleging that her complaints were inflammatory further aggravated her psychiatric symptoms. She felt dismissed when she had felt that her experiences of sexual harassment from Mr Khan were dehumanising which has taken away her sense of self.

151    The alleged aggravation of her psychiatric symptoms emerged less clearly in Ms Magar’s own testimony. When asked about her response to the Concerns Notices, she said she had been confused and could not understand what she had done wrong. She says she felt that Mr Khan was being manipulative of the situation. It was only through the First Concerns Notice that she discovered that Mad Mex had provided a video recording of her conversation with Ms van Wessem and Ms Dunwoody to Mr Khan. She says she had spoken to them on the condition of anonymity, and that she felt betrayed and that the investigation had been biased against her. That feeling is the result of the actions of Mad Mex rather than of Mr Khan. Ms Magar’s evidence is that by the point she had received the Concerns Notices, her mental health had already deteriorated significantly. The specific effect they had therefore appears minimal in the context of her overall condition. Mr Khan contended that to the extent that Ms Magar felt any negative feelings, they merely rose to the level of confusion, falling short of showing any real detriment.

152    Nevertheless, Ms Magar did comment on what she described as the aggressive words used in the Concerns Notices and confirmed that she knew they related to defamation proceedings after speaking with her solicitor. Her evidence was that the Concerns Notices made her worried: eg, “like maybe I did the wrong thing by going to … Redfern Legal Centre”, who are her solicitors in this proceeding. There are reasons to doubt that Ms Magar necessarily understood she was being threatened with defamation proceedings – the Concerns Notices are not abundantly clear in that regard, especially to someone in her position. In that regard, her counsel attempted to use a leading question to get Ms Magar to explicitly confirm that she knew she was being threatened with defamation proceedings. However, the question was disallowed following an objection from Mr Khan’s solicitor and that specific topic was not further pursued. Despite that additional piece of evidence, on the totality of Ms Magar’s evidence on this topic, I find that the Concerns Notices caused her a real level of distress which went beyond being trivial. I find that distress to be a detriment within the meaning of s 47A.

153    The second issue is whether there was a sufficient causal connection between Ms Magar’s Complaints to Mad Mex and her decision to pursue her complaint further, following the conclusion of the Mad Max internal investigation, and the sending of the Concerns Notices. Ms Magar submits that the Concerns Notices were clearly sent in retaliation after Mr Khan found out that she was considering causes of actions available to her after the conclusion of the Mad Mex investigation on 5 June 2023.

154    It is convenient to briefly repeat the timeline of events that preceded the sending of the First Concerns Notice on 21 June 2023:

(a)    18 April 2023: Ms Magar made the First Complaint to Mad Mex by messaging Ms van Wessem on LinkedIn.

(b)    28 April 2023: Ms Magar made the Second Complaint to Mad Mex, now in a more detailed way in a video conference with Ms van Wessem and Ms Dunwoody.

(c)    After 28 April 2023 and before 5 June 2023: Mad Mex representatives interviewed Mr Khan and made him aware of Ms Magar’s complaints. At some point in the course of the investigation, Mr Khan was made aware that Ms Magar was the primary complainant. Mr Khan also told Mad Mex that complaints had been made about Ms Magar sexually harassing other employees.

(d)    31 May 2023: Ms Magar’s solicitor emailed Mexicali, requesting a copy of Ms Magar’s employment contract, and confirmation of her employment status. The email also stated that, in the course of her employment, Mr Khan had “subjected our client to serious, repeated and unlawful sexual harassment, harassment on the basis of sex, and discrimination on the basis of sex (Harassment).”

(e)    5 June 2023: Mad Mex, through Ms Dunwoody, sent a letter to Mr Khan saying that the investigation was concluded, and that some of Ms Magar's complaints had been made out.

(f)    6 June 2023:

(i)    Mad Mex provided Ms Magar with a letter saying that some of her allegations had been substantiated and that appropriate actions would be taken;

(ii)    Ms Magar’s representatives spoke with a Mad Mex representative on the phone, who declined to confirm which of the allegations had been substantiated or what actions would be taken in relation to Mr Khan; and

(iii)    Mad Mex sent Mr Khan a “Notice to Remedy Breach of Franchise Agreement” which identified which of Ms Magar’s allegations had been substantiated by its investigation, stated that it considered Mexicali had breached some Mad Mex policies and legislation (including the SD Act) and required Mr Khan and Mexicali to take various actions to avoid termination of the franchise agreement.

(g)    8 June 2023: Ms Magar’s solicitor sent an email follow up to the email described at (d) above.

155    During Mr Khan’s cross examination, he accepted that once he received the letter from Mad Mex on 5 June 2023, he thought that matters related to the sexual harassment allegations had concluded, and that there was nothing further he needed to do, at least in relation to those allegations. He also accepted that his view changed on 8 June 2023, after receiving an email from Ms Magar’s solicitor, which was a follow up to an earlier email in which had stated that she would be advising Ms Magar on available causes of action related to the alleged sexual harassment. From that time, Mr Khan knew that Ms Magar intended to continue her complaints of sexual harassment and instructed his lawyers to send the First Concerns Notice, which was sent on 21 June 2023. The reply from Ms Magar’s solicitor on 14 July 2023 further strengthened his impression that Ms Magar would continue her complaints, and Mr Khan instructed his solicitor to send the Second Concerns Notice, which was sent on 28 July 2023.

156    Mr Khan denied that the reason for sending the Concerns Notices was to intimidate Ms Magar out of pursuing her sexual harassment complaint. In cross-examination, Mr Khan agreed that he was “instructed by [his] lawyers to go along this path” and accepted that the Concerns Notices were sent on his behalf. He denied that the Concerns Notices were to prevent Ms Magar from pursuing her complaints but stated that he was “trying to put an end to everything”. I accept his evidence that by instructing his lawyers to send the Concerns Notices he was trying to put an end to everything, and find that this was unavoidably directed to stopping Ms Magar from maintaining her complaints against him of, inter alia, sexual harassment. It follows that I reject his evidence that the Concerns Notices were not sent, on his instructions, to prevent Ms Magar from pursuing those complaints.

157    During re-examination, Mr Khan advanced a different reason for sending the Concerns Notices, namely that he wanted to maximise the sale price for the Store given he was in poor financial shape. He said that he was concerned about the value of the business diminishing if Ms Magar continued to approach Mad Mex about her complaint and agreed that that was the reason for sending the Concerns Notices. This evidence was adduced through a number of leading questions by Mr Khan’s solicitor.

158    I am not persuaded that this is in truth an alternative argument in the sense of being materially different. Rather, it was evidence of a further reason that he had for seeking to stop Ms Magar from pursing her complaint. It remained the case that he was seeking the withdrawal of Ms Magar’s complaint as the end goal. Whether Mr Khan ultimately wanted that to end for his own reputational reasons or for financial reasons does not negate the fact that he sent the Concerns Notices in response to Ms Magar deciding to further pursue her complaint. I am therefore satisfied that Mr Khan sent the Concerns Notices, via his solicitors, on the ground that she had made allegations that Mr Khan had engaged in acts that, by reason of Pt II of the SD Act, were unlawful.

159    It follows that I find that Mr Khan, by sending each of, and both, of the Concerns Notices, committed acts of victimisation against Ms Magar and thereby contravened s 47A(1).

F. Relief for the contraventions that have been established

160    Where this Court is satisfied that contraventions have occurred, and those contraventions were subject to a complaint to the AHRC which has been terminated by the AHRC, it may make declarations of contravention and orders for compensatory damages (among other things): AHRC Act s 46PO(4)(a) and (d). I am satisfied that declarations of contravention are appropriate, but will give the parties an opportunity to confer and propose joint or competing drafts as to their terms, in accordance with these reasons.

161    The damages that may be awarded under s 46PO(4) of the AHRC Act are “damages by way of compensation for any loss or damage suffered because of the conduct of the respondent”. Ms Magar seeks relief by way of damages as follows:

(a)    General damages of $300,000, reflecting non-economic loss for pain and suffering, as well as loss of enjoyment and loss of the amenities of life, resulting from Mr Khan’s contraventions of the SD Act (excluding the victimisation contravention).

(b)    $160,000 for future economic loss and $80,000 for past economic loss arising from her inability to return to work.

(c)    An additional $50,000 in general damages for the victimisation contravention, or alternatively if the victimisation contravention is not made out, $50,000 in aggravated damages collateral to the harassment.

162    That relief was sought if all of the allegations were made out. The Group Behaviour, Managers’ Behaviour and Sexual Comments were not established, though the most serious of the harassment allegations were, as well as the collateral victimisation allegation.

163    Compensatory damages under s 46PO(4) may include an award of aggravated damages: Tickle v Giggle for Girls Pty Ltd (No 2) [2024] FCA 960; 333 IR 296 at [232]-[250] and the authorities there cited. However, as I have found that victimisation has been established, this aspect of Ms Magar’s claim will be addressed upon that basis, as that is what she principally seeks under its own head of damages.

Principles for the award of damages

164    The principles pertaining to the award of damages for sexual harassment were surveyed in detail by Bromberg J in Ewin, and have not materially changed in the intervening period of almost 12 years since that decision was handed down. The principles his Honour distilled have a timeless quality to them. It is helpful and convenient to reproduce his Honour’s detailed and comprehensive summary of those principles, which extend to identifying the difficulties attendant upon assessing the appropriate level of damages, especially for non-economic loss:

[602]    There are a number of judgments of this court where the task of assessing damages for a contravention of the SD Act has been guided by principles utilised by the common law in the assessment of damages resulting from tortious conduct: Hall at FCR 239; ALR 522 per Lockhart J; Commonwealth v Peacock (2000) 104 FCR 464; 181 ALR 726; 63 ALD 127; [2000] FCA 1150 at [55] per Wilcox J; Richardson v Oracle Corp Australia Pty Ltd [2013] FCA 102 at [208] per Buchanan J. However, as French and Jacobson JJ (with whom Branson J generally agreed) said in Gama at [94], “Ultimately it is the words of the statute that set the criterion for any award”. Having said that, their Honours recognised that the appropriate measure may be analogous to the tortious measure, the object of which is to place the injured party in the same position as if the wrong had not occurred.

[603]    The interaction between a statutory source for an entitlement to damages (such as that provided for by the former s 82 of the Trade Practices Act 1974 (Cth)) and the principles of the common law were usefully summed up by Gleeson CJ in Henville v Walker (2001) 206 CLR 459; 182 ALR 37; [2001] HCA 52 at [18]:

[18] … The task is to select a measure of damages which conforms to the remedial purpose of the statute and to the justice and equity of the case. The purpose of the statute, so far as presently relevant, is to establish a standard of behaviour in business by proscribing misleading and deceptive conduct, whether or not the misleading or deception is deliberate, and by providing a remedy in damages. The principles of common law, relevant to assessing damages in contract or tort, are not directly in point. But they may provide useful guidance, for the reason that they have had to respond to problems of the same nature as the problems which arise in the application of the Act. They are not controlling, but they represent an accumulation of valuable insight and experience which may well be useful in applying the Act.

Similar observations were made by Gaudron J at [68] as well as by McHugh J (with whom Gummow J agreed) at [95]–[96] and [135].

[604]    What is abundantly clear is that care needs to be taken in applying common law principles to a statutory provision for the award of damages. Those principles should not be applied unless they are consistent with the text of the remedial provision and the objects and purpose of the statute in question.

[605]    The words used in s 46PO(4)(d) allow for “damages by way of compensation for any loss or damage suffered because of the conduct of the respondent” (emphasis added). The word “because” denotes a connection between two things “by which one is the explanation of the other”: John Holland Group Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2010) 198 IR 439; [2010] VSC 322 at [29] per Pagone J. The nature of the nexus required between the damage suffered and the unlawful conduct is that the conduct has brought about or caused the damage to occur: Human Rights and Equal Opportunity Commission v Mt Isa Mines Ltd (1993) 46 FCR 301 at 321; 118 ALR 80 at 98–9 per Lockhart J.

[606]    The extent of the contribution made by the unlawful conduct to the injury suffered may be taken into account: Gama at [99] per French and Jacobson JJ, with whom Branson J generally agreed. A practical judgment will be required.

[607]    The difficulty of assessment as well as the need to take the purpose and object of the remedial provision into account, are apparent from the following insightful observations made by Wilcox J in Hall at FCR 256; ALR 543–4:

[T]he task of determining the appropriate level of damages in a case of sex discrimination or sexual harassment is not an easy one. Where it appears that a claimant has incurred particular expenditure or lost particular income as a result of the relevant conduct, that economic loss may readily be calculated. But damages for such matters as injury to feelings, distress, humiliation and the effect on the claimant’s relationships with other people are not susceptible of mathematical calculation. The assessor of damages must make a judgment as to an appropriate figure to be allowed in respect of these figures. But to say this is not to denigrate the importance of such non-economic factors in the assessment of damages. It may be unfortunate that the law knows no other way of recognising, and compensating for, such damage; but this is the fact. To ignore such items of damage simply because of the impossibility of demonstrating the correctness of any particular figure would be to visit an injustice upon a complainant by failing to grant relief in respect of a proved item of damage. I respectfully adopt, as a statement of principle useful in this area of the law, what was said by May LJ, of the English Court of Appeal in a racial discrimination case, Alexander v Home Offıce [1988] 1 WLR 968 at 975; [1988] 2 All ER 118 at 122:

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

165    On the topic of past and future economic loss, dealt with at [618]-[651], Bromberg J surveyed the detailed evidence before him, both from Ms Ewin herself, and from a psychologist and a psychiatrist. However, his Honour was critical of the sparsity of evidence as to when Ms Ewin could make a graduated return to work. His Honour made the following observation, which has application to this case (at [630]):

Ms Ewin bears the onus of proof in establishing her loss and damage. She also has a duty to mitigate her loss and damage. I am not satisfied, on the evidence before me, that Ms Ewin was not capable of returning to work in a part-time capacity from 1 July 2010. Ms Ewin’s duty to mitigate her loss included a duty to take reasonable steps to graduate back into full-time employment. The appropriate steps which ought to have been taken, according to the medical evidence called for Ms Ewin, were not taken. In my view they should have been and could have been taken from at least 1 July 2010.

166    It is fair to say that the evidence of damages before Bromberg J was considerably more detailed than this case, including detailed evidence about Ms Ewin’s capacity to return to work, for which there was limited evidence in this case, and most of it obtained in the course of a single interview with Dr Fukui.

167    Bromberg J summarised the situation of Ms Ewin in relation to pain, suffering and loss of amenities in that case in terms that bear a reasonable degree of resemblance to this case: see [652]-[657]. I have found his Honour’s principled approach helpful in this case.

Ms Magar’s evidence

168    Ms Magar gave evidence that Mr Khan’s conduct giving rise to the contraventions has profoundly affected all aspects of her life, including her ability to work, socialise and look after herself. In particular, she gave compelling evidence about the impact of Mr Khan’s conduct on her mood and mental health.

169    Ms Magar testified that, after the last Car Incident, she felt humiliated, powerless and helpless “like I wasn’t human enough … Like I didn’t know whom to talk to or what to talk about.” Discussing her experience on 17 February 2023, the day on which she decided to not return to work, she describes the feeling of disassociating from her body and feeling unable to control her bodily movements.

170    In the months following 17 February 2023, Ms Magar describes being bedridden most days, being unable to prepare food to eat, get water to drink or get out of bed to use the bathroom without difficulty. She describes being at the “mercy” of her friends, who would have to bring her food and water in bed. She said she felt that she would have killed herself, but did not have the energy even to plan her suicide. A few weeks after 17 February 2023, with her savings running out, she moved in with her partner. She remains heavily reliant on him day-to-day and is financially dependent upon him. Prior to this, Ms Magar had been living alone in sublet premises.

171    Ms Magar’s evidence is that, even now, she is affected by thoughts that others judge her or view her in a sexual way, which has made her afraid of going outside. She describes being afraid to leave the house by herself, and that she needs someone to accompany her to assure her that people are not viewing her sexually or judging her. She says she feels dirty, and feels like she deserves to feel that way. She says that to leave the house she needs to plan far in advance so that she is ready to be presentable. Friends can visit her at home, but only for limited periods, which has made it exceedingly difficult to sustain friendships.

172    Ms Magar describes being afraid of working again: “even when I go through drive-through of McDonald’s or, like, some fast food chain, I just can’t imagin[e] me being in the other side.” She has been able to continue studying, though says she must plan carefully to prepare herself to attend classes where she has to do so, because of the difficulties she faces when leaving home.

173    All of the above evidence falls to be considered in the context of her complex history of mental health issues, that bear not just on the assessment of damages, but also antecedent to that, in the assessment of the credibility and reliability of her evidence as summarised above.

174    When Ms Magar was 15 years old and living in Nepal, she was diagnosed by a psychiatrist with depression and anxiety. As a teenager she experienced physical and sexual abuse. Her depression and anxiety persisted since arriving in Australia at 18 years of age, including during a period where she experienced abuse by a former boyfriend. She has been prescribed with an anti-depressant, venlafaxine, since she arrived in Australia. In 2021, she started seeing HeadSpace, Australia’s national youth mental health foundation, which provides early intervention mental health services to 12-25 year olds.

175    In January 2022, Ms Magar experienced an episode of psychosis, which included experiencing auditory hallucinations. She was hospitalised for a period, and on discharge was referred to HeadSpace’s program for early psychosis, which involved psychological and psychiatric treatment. She was also prescribed with anti-psychotic medication. After returning to Nepal to visit family, she returned to work at the Store.

176    Ms Magar gave evidence that between the January 2022 episode and 17 February 2023, she did not experience an episode of psychosis again. In consultation with her HeadSpace psychologist, she halted anti-psychotic medication in January 2023. Ms Magar says she felt “reborn”, and found it exciting to meet new people, attend HillSong events near the Store with friends, go on hikes and attend Nepalese concerts. She describes being able and unafraid to go outside alone at that time, which was around the time that the harassment behaviour by Mr Khan commenced.

Dr Fukui’s evidence

177    Dr Fukui’s report largely recites aspects of Ms Magar’s account of the impacts of Mr Khan’s conduct as the factual substratum for the opinions she gives. There are no material inconsistencies between that and the evidence that Ms Magar gave before me, although it is apparent that the latter was less detailed in certain respects. Dr Fukui’s report does not contain much about the actual incidents themselves – there is only one short paragraph about it and it refers to the details in the amended statement of claim. However, in terms of the impact of the events upon Ms Magar, the report is more detailed. Given the report was made for the purposes of determining the effect of Mr Khan’s conduct on her, I interpret phrases such as “the experience in her workplace” and “her exposure to sexual harassment” as referring to the conduct towards her by Mr Khan. Notably, Ms Magar described to Dr Fukui her dread about work (“a sense of dread as if she is going to die”) in very similar terms as in her testimony. Dr Fukui echoes the impact that Mr Khan’s actions have had on Ms Magar’s personal and social life, including a loss of trust in others, especially men, which has contributed to her self-isolation.

178    Dr Fukui’s opinion is that Mr Khan’s conduct caused Ms Magar to sustain psychiatric conditions which resulted in her loss of independence. The report states that the sexual harassment incidents “have exacerbated her longstanding anxiety and depression” and resulted in her “currently suffering from Major Depressive Disorder with Anxious Distress and Posttraumatic Stress Disorder.”

179    A recurring theme in Dr Fukui’s report was Ms Magar’s deep sense of uncertainty about the future, given she is still experiencing acute symptoms from her psychiatric conditions. The report concludes that, while it is difficult to assess Ms Magar’s prognosis for recovery at this stage, with her complex psychiatric history it is likely she will need long-term psychiatric and psychological treatment to return to her previous level of functioning. This includes a minimum of two years of intensive psychological therapy, as well as psychiatric monitoring over her mental state and pharmacotherapy.

Assessment of economic loss

180    Ms Magar testified that, on 17 February 2023, shortly after the last Car Incident, she had taken the bus from her home to the Store, but found herself physically unable to get off the bus:

I was on my usual seat on the bus because, like, I had to take it every day – almost every day. So, like, I could see this station, and, like, in my brain, like, a lot of thoughts were racing, and, like, I was saying to myself, “Okay. You need to get off. Like, it’s your time to start. Come on. Get off. Get off.” But, like, I physically couldn’t move any part of my body.

181    She has not returned to work since.

182    Ms Magar’s contention is that Mr Khan’s actions have prevented her from engaging in paid work. That turns on the findings about the psychological impacts of Mr Khan’s actions on Ms Magar. For the reasons discussed below, I accept the substance of that evidence, as far as it goes, which is limited on the topic of future economic loss for the reasons I give below.

183    In cross-examination, Mr Khan’s solicitor suggested to Ms Magar that the visa she had held from April 2023, a bridging visa class C, did not entitle her to work anyway. Ms Magar’s evidence is that she could have transferred to a bridging visa class A at any point in that period, the inference being that she would have had she been able to work. I did not consider this challenge to go towards the substance of her evidence. It is not necessary to determine whether Ms Magar would be able to obtain a different class of bridging visa or to obtain work rights on her existing bridging visa given the lack of evidence on this issue. In any event, it is obvious that there would be little point for Ms Magar to pursue a change in visa status to permit paid work to be performed at a time when she is unable to perform it.

184    Ms Magar’s employment contract with Mexicali shows that her base rate of pay was $28.75 from 11 October 2022 (the contract appears to have been amended after its execution in March 2022, with a new base rate inserted, which was signed and dated) Under that employment contract, she agreed to work an agreed schedule of 30 hours per week, set out in an annexure, “plus reasonable additional hours.” Ms Magar’s evidence was that, in the period prior to the contraventions, she had worked roughly 30 hours a week. She also gave evidence that sometimes she was late for her shifts because of panic attacks, though it is unclear whether her evidence of working on average 30 hours a week factored that in. She also gave evidence that occasionally she would work a longer shift or would be asked to work additional shifts. Text messages with Ms Magar, tendered by Mr Khan, support both propositions.

185    At her base rate from October 2022, 30 hours’ work equates to $44,850 per annum gross. It was ultimately advanced that a ballpark figure of $40,000 per annum would be suitable after accounting for income tax, amounting to $80,000 for lost income in the calendar years 2023 and 2024.

186    There was no dispute that this figure should be awarded if liability is established, given her hourly rate and regular work hours were clearly documented by the evidence. Based on Ms Magar’s evidence and Dr Fukui’s psychiatric evidence, I am satisfied that Ms Magar was incapacitated for work during the relevant period as a result of her psychiatric condition brought about by Mr Khan’s sexual harassment conduct. Accordingly, she should receive $90,000 for past lost income for the period from 17 February 2023 to the date the hearing concluded on 5 June 2025, being just under 28 months.

187    In relation to future economic loss, Ms Magar contended that this Court should project forward for a period of five years, less 20% for vicissitudes. This equates to $160,000 for a $40,000 per annum salary, on the assumption that she would have continued earning the same salary as she did when she worked at the Store. When pressed about how the five-year timeframe was arrived at, Ms Magar’s counsel said there was no particular science behind the figure, but that it was partly guided by the award in Taylor v August, where the projection was that the complainant would be unable to work for three years (at [554]), and Dr Fukui’s evidence on Ms Magar’s prognosis. However, in Taylor v August, agreement had been reached about future economic loss, including the duration involved, apparently due to there having been a workers compensation assessment and payment, for which the claim was supplementary.

188    It is also noteworthy that while Dr Fukui records Ms Magar’s concerns about returning to work, and her need for ongoing treatment, she expresses no view about when Ms Magar is likely to be able to return to work, nor anything about a graduated return to work. There was no evidence about timing for a return to work, either on a graduated basis, or full time. Nor were any submissions directed to that topic.

189    The evidentiary basis of the $160,000 claim for future economic loss is tenuous. Ms Magar expressed a level of hopefulness in completing her studies, supported by the fact that she has been able to manage her courseload with careful planning, but this sentiment did not seem to fully extend to her future work prospects, as her experiences with work triggered higher levels of distress (i.e., she likened “the thought of going to work as having to go and die”).

190    Dr Fukui was similarly cautious in her optimism, noting that Ms Magar would require “long-term” psychological therapy with a “minimum of two years of intensive psychological therapy” to regain her previous level of functioning. However, this was evidence about treatment, not returning to work. It was also acknowledged during closing submissions that there is no real guidance beyond this two-year period, and the five-year timeframe was arrived at by using Taylor as a “yardstick”.

191    I accept that there’s an instinctive component to assessing the figure for future economic loss, in circumstances where the evidence suggests that it is difficult to assess Ms Magar’s prognosis for recovery beyond needing intensive treatment for two years. I am satisfied that Ms Magar’s condition is likely to improve with psychological and psychiatric support, especially given that she has responded well to treatment in the past. In particular, she was back at work and happy after an episode of psychosis serious enough to warrant hospitalisation. Despite the seriousness of her prior condition and the seriousness of her condition brought about by the conduct of Mr Khan, Ms Magar has shown herself to be resilient, which is to her enduring credit.

192    There was no evidence that Ms Magar would not be able to work at all during the remainder of the two-year period of treatment that is already underway, or even that she could not resume fulltime work within that period. I am willing to infer that she would be unlikely to resume work before the end of the third anniversary of ceasing to work at the Store, being mid-February 2026, but even that degree of pessimism is uncertain. In the absence of any evidence to rebut it, I consider it likely that Ms Magar will be able to progressively return to work after that, ultimately returning to work at the level she was at previously, being 30 hours per week. Doing the best that I can, I consider that this will average out to an aggregate of a further year’s employment from now, being $40,000.

193    The total award of damages for economic loss will therefore be $130,000.

Assessment of general damages – pain and suffering and loss of amenities

194    The evidence of Ms Magar’s condition and prognosis referred to above as to economic loss applies also to general damages. The evidence of Ms Magar and Dr Fukui establishes to my satisfaction that Ms Magar was a psychologically fragile and vulnerable young woman at the time that the sexual harassment took place. Nonetheless, immediately prior to the sexual harassment, and even after a serious mental health episode, she was functioning and happy at times, though experiencing persistent depression and anxiety. She was able to work and enjoyed a healthy social life. She was able to live independently and leave the house alone.

195    That is to be contrasted with her condition since the events in question. Although Ms Magar is able to continue her studies in a constrained way with some difficulty, the events in question have had a profound effect on her ability to function normally and her happiness in general. On the evidence furnished, in the lead up to the June 2025 hearing she was unable to work, leave the house alone, or undertake normal self-care. Her sleep and eating habits are disturbed. She feels ashamed and somehow responsible for what occurred, saying she feels dirty and like she deserves to feel that way. She is dependent on her partner for support, both financially and for day-to-day tasks.

196    Ms Magar’s psychiatric history made the impact of Mr Khan’s sexual harassment greater than it might otherwise have been. In tort, wrongdoers must take their victims as they find them. The same must be the case in discrimination cases, especially given that Mr Khan had knowledge of at least aspects of Ms Magar’s psychiatric history, and in particular that she experienced a psychotic episode almost a year before the contravening conduct. There was minimal evidence separately addressing the effect of the victimisation, the burden of which was summarised in the section above addressing detriment for the purpose of establishing the victimisation claim. By contrast, the evidence is that the sexual harassment, particularly the Car Incidents, have had a profound impact on her life.

197    None of the impacts on Ms Magar’s life deposed to by her, or in the evidence of Dr Fukui are disputed by Mr Khan. His unlawful actions in sexually harassing her have drastically decreased her quality of life, at least for the time being. Despite this, she is clearly a resilient young woman and, in line with Dr Fukui’s evidence, I am satisfied that her condition is likely to improve if she receives the psychological and psychiatric care that she requires. Indeed, it may be possible that she will recover more quickly than has been predicted thus far, and perhaps in ways that have not been able to be predicted and addressed. I consider it likely that the vindication she will receive from the decision I have made, including the findings I have made about her, will go some way to restoring her sense of personal worth.

198    Ms Magar contends that since Richardson v Oracle Corporation Australia Pty Limited [2014] FCAFC 82; 223 FCR 334 and Taylor v August, there has been a shift in community standards reflecting the deep hurt and humiliation experienced by victims of sexual harassment. In particular, she drew attention to the fact that Ms Taylor was awarded $140,000 in general damages, in circumstances where she had improved and could manage part-time work by the time of the trial, notwithstanding the chronic psychiatric disorder that she developed as a result of the respondent’s conduct, characterised by anxiety, depression and loss of function. In these circumstances, Ms Magar argues that Mr Khan’s actions had a greater impact on her functioning, in that she developed post-traumatic stress disorder and major depressive disorder, the effects of which have rendered her bedridden for months and unable to complete basic self-care activities, with little improvement so far.

199    I accept that Ms Magar experienced a more drastic decrease in functioning than that which was apparently described in Taylor v August. However, comparisons between sexual harassment cases are not straightforward and the Court does not assess damages by performing arithmetic adjustments to prior determinations: Oracle at [82] (Kenny J); Hughes at [48] (Perram J, Colliers and Reeves JJ agreeing). Prior awards of damages are therefore not precedents, but can act as yardsticks to assist in arriving at an appropriate measure of damages. As explained by Bromberg J in Ewin (at [658]):

The assessment of general damages in compensation for pain and suffering, for loss of amenity or enjoyment of life and for other intangibles, is not a science and by its nature is not readily capable of arithmetic calculation. … The award of compensation should be neither restrained nor excessive. Each case will be determined by its own particular facts. With great caution, regard may be had to similar cases in order to determine an appropriate range within which the damages awarded should fall.

(Emphasis added.)

200    Having regard to the matters above, including the impact of Mr Khan’s actions on Ms Magar and the positive and hopeful prognosis offered by Dr Fukui, I consider that an award of $300,000 in general damages for sexual harassment and an additional $50,000 for victimisation would be excessive in these circumstances in that it would exceed the level of damage that has been proven. In saying this, I echo what Bromberg J said about general damages.

201    In addition to Ewin, and the cases that Bromberg J refers to, I have examined a number of subsequent cases dealing with the assessment of damages in this area, including in particular Taylor v August, Mathews v Winslow Constructors (Vic) Pty Ltd [2015] VSC 728 and Hill v Hughes [2019] FCCA 1267 (affirmed on appeal in Hughes, considered above). That examination has included a cautious consideration of the awards of damages in those cases, as a kind of yardstick for this case.

202    I accept that Ms Magar has suffered a substantial loss of enjoyment of life and indeed her life for more than two and a half years since the sexual harassment commenced in early 2023 could be properly described as having been miserable. I consider that this is likely to abate over the next two years, by which time I consider she should be well on the way to recovery, if not complete recovery. She has been resilient in the past, and from observing her and considering her evidence and the evidence about her, I consider it likely that this will return as she recovers with the benefit of treatment. Unlike Ms Ewin, she has suffered from illness as a direct result of Mr Khan’s behaviour towards her, but the impacts on Ms Ewin were nonetheless substantial and long-lasting.

203    Again, doing the best that I can, I have decided that the appropriate award of damages in favour of Ms Magar is $160,000 in general damages for the sexual harassment perpetrated by Mr Khan, compensating her for the past and the future.

204    As to the victimisation, while I am satisfied it is real, the evidence as to its effect on Ms Magar is somewhat sparse. That said, it cannot be said to be trivial, and it is conduct which must be condemned. A person in Mr Khan’s position, and any lawyer advising such a person, should recognise that resort to threats of defamation action for complaining about sexual harassment is a dangerous course unless comfortably satisfied that the allegations are baseless. In a case in which real and substantial damage is proven from such conduct, the award of damages could well be very substantial. However, that is not this case. I consider that an appropriate award of damages for the proven victimisation is, in all the circumstances, $10,000.

Aggravated damages

205    As an alternative to the victimisation claim, Ms Magar sought $50,000 in aggravated damages. Given the victimisation claim has been made out, no aggravated damages should be awarded in respect of any conduct that cuts across the victimisation claim. To do so would be to award damages twice for the same loss.

206    However, in closing submissions, Ms Magar advanced additional bases justifying an award of aggravated damages, namely, aspects of how Mr Khan conducted his case during the hearing. Her first concern is with a suggestion by Mr Khan’s solicitor that the contravening conduct could not have occurred because Ms Magar was able to continue working at the Store and had sent a text message to Mr Khan on 16 January 2023 asking how his operation went. Second, she takes issue with Mr Khan’s submission which claimed that since Ms Magar had once mentioned to Mr Mehta that she liked chaos in her life and had been shown pornography before, that made her less likely to be offended by the alleged contravening conduct. Indeed, that second argument went further, contending that Ms Magar had been addicted to pornography.

207    Neither argument was put to Ms Magar during cross-examination. The submission on pornography was scandalous, and entirely unsupported by Mr Mehta’s notes. More importantly, there was no basis for an argument that because a person had been exposed to pornography, or liked chaos, that they would not be hurt or offended by a person in a position of power over them showing them pornography. It was a highly offensive argument to put. Nor was there any basis for the argument that, because she had previously had friendly interactions with Mr Khan, any of his subsequent conduct was less plausible. As Ms Magar submitted, that rested on antiquated notions of how people respond to sexual harassment in the workplace (further discussed above at [141] above).

208    The way in which a respondent conducts themselves during and in the lead up to a proceeding can give rise to an award of aggravated damages under s 46PO(4), where that conduct makes an applicant’s distress worse after the wrongful act or acts are committed, and where that conduct was improper, unjustifiable or lacking in bona fides: Taylor v Pemberton at [524]-[525]; Elliott v Nanda [2001] FCA 418; 111 FCR 240 at [180], [182]; Hughes at [61]-[64]. I am satisfied that both grounds are met here. Though Ms Magar did not give evidence as to the hurt it caused her after these arguments were said, that hurt could be obviously inferred. These arguments, and especially the second, were not bona fide parts of Mr Khan’s defence.

209    No particular amount was suggested for aggravated damages arising from the way in the which the proceeding was defended. In the circumstances, including the relatively fleeting nature of the conduct complained of, I consider an award of aggravated damages of $5,000 is appropriate.

G. Overall Conclusions

210    Ms Magar has substantially succeeded in her claims. I find that she was sexually harassed by Mr Khan and victimised for complaining about his unlawful conduct. I am also satisfied that his conduct caused her to suffer loss and damage.

211    The parties will be directed to confer and within 14 days or such other time as may be allowed, provide agreed or competing orders to give effect to these reasons as to declarations of contravention. Once that has been furnished, I will additionally make orders to the following effect, ordering Mr Khan to pay Ms Magar a total of $305,000. This is made up of:

(a)    Damages in the sum of $175,000, comprising:

(i)    general damages for sexual harassment in the sum of $160,000;

(ii)    general damages for victimisation in the sum of $10,000;

(iii)    aggravated damages arising out of an aspect of the way in which Mr Khan’s case was run at trial in the sum of $5,000;

(b)    compensation in the sum of $130,000, comprising:

(i)    $90,000 for past economic loss up the date of the conclusion of the hearing on 5 June 2025;

(ii)    $40,000 for future economic loss from the conclusion of the hearing.

212    No reason has been advanced for costs not to follow the event and therefore for Mr Khan not to be ordered to pay Ms Magar’s costs. If that is not disputed, the draft orders should reflect that. However, in case there is some reason for a different costs order to be made, short written submissions and any evidence can be filed according to a timetable agreed between the parties, or by a timetable ordered by made in chambers, considering the parties’ competing timetables. Any such agreed or competing timetables should be furnished to my chambers by email within 7 days.

Associate:

Dated:    1 August 2025